Blended mediation – why we’re building back better

Before Covid-19, in-person mediation was the norm. Then came the pandemic and remote mediation moved into pole position. Now, as lockdown restrictions start to ease there’s an opportunity for a blended approach that offers the best of both worlds.

We know that in-person mediation works. And we know that remote mediation works. So why not blend the two together for the ultimate in flexible mediation? In one recent case that I mediated the solicitor and one company director physically attended at a venue in London while the two other company directors joined us on Zoom from LA (a little sleep deprived as it was 2am for them, but they didn’t seem to mind).

Blended mediation isn’t just for disputes involving multi-national companies – it can be applied to a range of mix and match situations. One party could be at the mediation in person while the other party attends via Zoom. Or there might be a split attendance within the parties – for example, the in-house lawyer is physically present and the finance director joins remotely. In mediations where barristers are involved, you could potentially have the client and solicitor there in person and the barrister attending remotely (rather handy if there isn’t a joint opening session and they’re only required at the end of the mediation to draft the settlement agreement).

Benefits of blended mediation

There are obvious plus points for using remote mediation in a blended approach. Reduced travel time or costs overall – not to mention a hefty saving for the planet when planes, trains and cars are taken out of the equation for some. Blended mediations are also quicker to set up. With one or some of the party joining remotely there’s less to-ing and fro-ing to synchronise diaries and agree venue.

There’s a time-efficiency element, too. With remote attendance, rather than having to hang around while the settlement agreement is being drawn up parties may be free to go off and do their own thing once agreement in principle has been reached – a WhatsApp message can be sent to let them know when the agreement’s ready to sign. Equally, solicitors – while remaining committed to the job in hand – can put themselves on mute should an urgent matter relating to another client arise when there’s ‘downtime’, and the mediator is with the other party.

While we’re still navigating our way out of Covid-19 the blended mediation approach can be particularly useful. For example I can see it being applied to disputes involving inter-generational family businesses and contentious probate where older participants – whether shielding or still cautious – would prefer not to mediate in person. And where parties are in different countries, remote mediation would surely be welcomed if it avoided air travel and mandatory hotel quarantine.

As a side note, I wonder how the English courts may view a refusal to attend a blended mediation. Will citing Covid be an unreasonable refusal and will this trigger the costs sanctions that follow? I somehow expect so.

Pick ’n’ mix flexibility

Like anything new and unexplored, blended mediation may take time to bed in. I can see that there may be concerns about the neutrality of the mediator should one party be wholly remote while the other party is mediating entirely in person. Remote attendees may worry that the mediator will spend less time with them or that they won’t receive the same level of empathy and trust as the in-person attendees.

To this I would say that neutrality is part of a mediator’s DNA. Mediators are adept at building rapport and with their proficiency in using Zoom or other video conferencing platforms there’s no need to fear that their impartiality will be compromised. Usefully, IPOS offer a complimentary walk-through on Zoom for participants who’ll be joining a mediation remotely. In part a familiarisation exercise on how the platform works, it’s also a good way for remote parties to get the measure of the mediator and to alleviate any concerns they might have about being treated differently to in-person attendees. If desired, this can also separately be offered to those who’ll be attending in person so they can do likewise and also see what the others joining remotely will experience on the day. (Taking my mantra of ‘getting people to see things from the other’s perspective’ truly to heart).

Of course, some parties may actively choose to mediate entirely remotely even when the Covid restrictions have been eased. They might feel less nervous than if they were at the mediation in-person, or simply prefer the comfort and familiarity of their own home or office to a venue. They might also feel more in control – they’re in command of the mute button and can make a cup of tea or go out into the garden to clear their head when they need to.

Remote or in-person – the beauty of blended mediation is that participants have the flexibility to be wherever they want to be. And with so many pick ’n’ mix options available, blended mediation suits all kinds of disputes, large or small, national or international. As the government sets out to ‘Build back better’ post-Covid, I believe blended mediation could be here to stay.