Following the successful Webinar we have produce a handout
The current extraordinary situation caused by the Covid-19 pandemic
- How does online mediation differ from face to face?
It’s quicker to set up, cheaper (no venue or travel costs) and takes less time (no travel).
- Do solicitors, barristers and parties all need to be together?
Absolutely not. Advisers and their client(s) can all be assigned to one “breakout room” where they can talk freely in confidence. Only the mediator can visit them there.
- Do you still have a joint session?
Yes, if everyone is willing. In this case the parties are invited to join a main meeting room with the Mediator.
- Is preparation the same as for a face to face session?
Yes. In addition, the parties and advisers will be sent a Zoom invitation for the day. It is also good to have the usual pre mediation chat on Zoom with the advisers, parties and the Mediator to check everything is set up using the technology.
- “Technology set up?” What’s involved?
Ideally you will use a computer or laptop, but a phone will do. Ideally you will have earphones with a microphone but usually the microphone on the computer/ laptop/ phone will work fine.
- Should we still prepare Position Statements?
Yes, in all mediations the more each party knows beforehand about where the other party is coming from, the better. It’s also a useful summary for the Mediator.
- Is online mediation unsuitable for any cases?
Some say it’s unsuitable for highly emotional cases but in our experience the reverse can be true. There can be a deep sense of connection and confidentiality by video.
- Does it all have to be done in one day? What about when parties are in different time zones?
You can have several sessions of say 2 hours each over several days. No problem internationally, you just choose the slots when working hours overlap.
- How is the settlement agreement drafted and signed?
This can be either by e-mail or using for example the communal drafting facility on Zoom where the mouse can be passed to each solicitor in turn to make amendments. Signature can be electronic by e-mail or using a secure platform such as DocuSign.
- So why wasn’t online mediation such a thing before Covid-19?
Good question. Many mediators have been asking themselves this. Perhaps because it is well known by mediators that chocolate encourages people to settle and this is one of the few things you actually need to meet face to face to share!
I hope you and your loved ones are keeping well in the current situation.
I have seen an upsurge in online mediations – using both Zoom and the telephone. If you’d like a short experience of how Online Dispute Mediation works take a look at this 8 min video made back in 2013 when I was the Non Executive Director “guinea pig” for the ADRg Accredited International Online Dispute Resolution Mediator course. Prescient times.
Those skills have now become an important part of my everyday working life, whether mediating contentious probate, property disputes, commercial contracts disputes, family business disputes, professional negligence, or simply recovery of fees. I’m offering a 20% discount on my fees in April to encourage people to put their conflicts to bed during these exceptional times.
With thanks to Jacky Chapman, photographer, for the photo.
The Coronavirus has severely impacted international travel and world trade. Many people have cancelled trips overseas, especially to the Far East and companies are enforcing policies restricting travel.
In these challenging times when face to face meetings cannot take place the use of video conferencing and the good old-fashioned telephone become ever more important to keep channels of communication open.
I have generally seen an uptake in the use of ODR (online dispute resolution) and telephone mediation in recent times and I expect it to increase further for international disputes.
Either using a secure platform such as Zoom, or the telephone is a cost-effective and time-efficient method of resolving a dispute outside of court or arbitration. It avoids the need to travel from the desk. But does it work?
Absolutely the answer is “yes”, provided the parties are comfortable with it (and usually they are from the outset or they quickly become so as the session develops).
So how does it work? Well, the answer is, similar to a face to face mediation. Private conversations with the mediator take place, and joint discussions can be facilitated if wished and desirable. The usual rules of confidentiality apply. Advisors can be at the same location as their clients (preferable) or join from a different place. They can also be available only if needed (a cost-efficient approach, usually meaning they step in towards the end to draft and agree the settlement agreement).
The aim of the mediation is to agree and sign a Settlement Agreement by the end of the session. This can be done electronically. Sometimes a template is prepared and circulated beforehand to make the best use of time in the session.
My sympathies are with those affected directly or indirectly by the Coronavirus. Our roles in business are to ensure we do all we can to cooperate with efforts to contain spreading the virus. Resolving conflict by telephone or Zoom with the assistance of a mediator is one way to do so, and perhaps by doing so to further “peace through world trade” (the motto of my livery company The Worshipful Company of World Traders) along the way. Something that is to be aimed for even more today than ever before.
Civil and Commercial and Workplace Mediator, Attree & Co
Prince Harry met with the Queen and Senior Royals yesterday to discuss the future plans of Prince Harry and Meghan. Is this an opportunity for a Right Royal Mediation?
Everyone is waiting with bated breath to see how the talks will unfold.
I wish them well and hope a satisfactory outcome can be found for all as soon as possible.
However, as a mediator specialising in facilitation of family business disputes (and this is beginning to look a lot like one), I wonder whether using an independent neutral trained in facilitating resolutions of conflicts of this type might help.
What would a mediator add/ do in these circumstances? Here are a few things:
1. They would allow each party to “vent” or say how they feel in private to the mediator. A powerful process of getting things off your chest (even to someone not involved) means people can feel more ready to move on. There may be cultural or other sensitive issues to be aired.
2. The mediator can help to put what is said into words that will be more easily listened to and understood by the other party. They can ‘take the heat’ out of the message. It may even be apologies are given or exchanged. So much easier to do in a calm environment and possibly through a third party.
3. The mediator will help each party to formulate what they really want, and what are the benefits and risks of their suggested outcome(s).
4. The mediator will help each party to understand better where the other is coming from and “get into their shoes”. Once this happens, the possibility of a deal becomes more probable.
5. Once a way forward in principle is on the table, the mediator can help each party to “reality test” it, and to see whether they could actually live by it.
6. The mediator could challenge people’s unrealistic beliefs by asking probing questions.
7. The parties could have various different meetings either altogether, with communication assisted by the mediator, or separately where everything said is confidential and will only be disclosed to the others if agreed. This can make people feel more comfortable and in control of the dialogue.
8. If someone is attending by telephone, this is a perfectly good way of negotiating. Indeed, I do many telephone/ Skype mediations. However, the interposing of a mediator makes all of the above all the more successful as the direct line is to the mediator rather than on loudspeaker unless otherwise agreed.
9. Then there’s the money. Rarely is the money sorted out completely until the emotions have been addressed. But when it is time to look at a financial settlement, nothing beats having an independent person looking at the figures in each room and assisting to broker a deal by managing expectations and helping parties look to a range of options.
10. Finally, there’s the fact that all mediations, and what are said at them, is confidential, unless otherwise agreed. There is nothing worse than “airing dirty washing in public”. One reason why we hear so little of mediation and its benefits – usually it’s all behind closed doors.
Rebecca Attree, Attree & Co, International Commercial Mediator.
I have had a spate of mediations recently relating to parties in the latter stages of their lives. A number of issues arise in these situations, that mark them out as cases where extra considerations may need to be borne in mind at the mediation.
- When one or more of the parties are represented by someone acting under a Lasting Power of Attorney, they may have a limited authority to settle. Indeed it may be necessary to obtain the sanction of the Court of Protection to any Settlement Agreement.
- In reaching any such settlement, the Mediator’s usual mantra of the “soft costs of litigation” (time, effort, etc) are irrelevant. The Attorney has a duty to act in the best interests of the Donor of power, irrespective of how much time and trouble it will cost the attorney on a personal level.
- The capacity of an individual to still give some evidence or to form a view about a matter, notwithstanding the appointing of an Attorney, may be necessary to consider. It may be possible for someone still to have capacity regarding some of the important long-term issues while being incapable of recalling minutiae from the short term memory.
- The ability to achieve total closure may, depending on the circumstances, be severely curtailed by the possibility post death of a claim for example under the Inheritance (Provision for Family and Dependants Act) 1975 or the currently fashionable promissory estoppel doctrine.
- There may be issues of how the spending of diminishing assets on legal and associated costs or indeed as part of a settlement agreement may be viewed by the Local Authority when determining at what point they will fund care.
- The psychological issues at play are even more complex when none of the key protagonists are present. Those representing them under a Power of Attorney have duties to perform on their behalf. But they are still human, often closely related to the donor, and usually untrained in the difficult art of putting their own emotions, views and interests to one side (something a mediator is trained to do on a daily basis).
Ultimately, conflict takes its toll on anyone. But on those who are frail and in their twilight years its toll may be even harder. And those representing them do not have an open hand to deal as they might if it were their own conflict. They may further be burdened by the question “what would X have wanted if they were looking after this?”, to which the answer can only be surmised. The sooner these cases can be resolved with a solution satisfactory to all the better for everyone concerned.
The recently reported case of John and Anne Scarle, the elderly couple who died in their home, is an example of how conflict can arise when even the best made plans are in place. They each made a will leaving their estate to the other, and on the second death for it to be left to their own children (it was a second marriage). The daughter of the second person to die would therefore inherit the total amount of their combined estates. Sadly, the husband and wife both died from hypothermia in the course of a week, but it has not yet been possible to ascertain who died first. This has led to litigation between the two stepsisters as to who inherits the combined estate. There is a legal presumption that the older person died first, but this can be rebutted by evidence. Perhaps a case as binary as this, where at court one stepsister stands to gain all and the other to lose all, is ripe for a mediation with its flexibility of outcomes and the possibility for the combined estates to be shared between them if they were to so agree? Of note however is that the Revenue would still apply its own deeming rules relating to Inheritance Tax irrespective of any such consensual agreement…a good reason to always take tax advice before entering in to any settlement agreement.
Rebecca Attree is a Mediator and Solicitor with Hexagon Mediation
I am delighted to be invited by BrixtonBID to deliver this workshop to local businesses . For more details, see http://www.brixtonbid.co.uk/event/how-to-resolve-conflicts-quickly-and-easily-by-mediation/
Mediation in the Modern Workplace Seminar was organised by Hexagon Mediation on Tuesday, 9th October from 6.00pm.- 8.00pm at the Boardroom of Laytons, London Bridge, London. (The photo is of the view from the boardroom that evening).
Part of Mediation Awareness Week, Hexagon’s seminar was hosted by a panel that comprised fellow founding members of Hexagon Mediation Michael Farrier, Stephen Walker and myself.
Our intention was to raise further awareness of the increasing appeal of mediation in the modern workplace as an alternative, or additional method of resolving employee relations-based conflicts. The session sought to challenge delegates to try a different approach to conflict management when next faced with a grievance or disciplinary issue that may be appropriate for mediation.
We gave insights as workplace mediators into our own experiences of businesses that have embraced the principles and practices of workplace mediation. We compared workplace mediation to other forms of mediation and explained how many aspects of each of the processes overlap. Workplace mediation blends private caucuses and joint meetings and can be with or without lawyers present.
The seminar was warmly welcomed by the audience which included other practising workplace mediators, HR professionals, HR leaders, in-house counsel and lawyers, and civil and commercial mediators who have all had experiences of internal conflict management. Finance managers interested in reducing conflict costs also found this topic of interest.
There followed a lively debate about how workplace mediation can and should be integrated into the culture of businesses, schools and charities.
Thank you to all those who attended and your kind feedback.
What does a mediator really do?
I have been asked this question a number of times this month by people ranging from a highly experienced QC to a litigation solicitor and a party in dispute.
I can understand why this may be a mystery to many. After all, even if they have been to numerous mediations, they will have probably seen the mediator for at most half of the time. A great deal of what happened the rest of the time is confidential and cannot be disclosed to them.
So let me unravel some of the mystery…
A good mediator will help a party:
- to ascertain what they really want, and what is important to them;
- to understand the strengths and weaknesses of their case, not just from a legal perspective, but also from an evidential and a commercial point of view;
- from there, to do a cost: risk benefit analysis for the best, worst and most likely outcome at court. In other words, how much would they net receive or lose depending on the court decision. The cost: risk benefit analysis is expanded to consider other factors such as management time and resource, stress, loss of ability to take up other opportunities/ loss of sleep (yes, really);
- to overcome blockages to decision making by addressing psychological biases (watch this space for a future blog). As a taster, see this short video ‘Capuchin monkeys reject unequal pay’ https://www.youtube.com/watch?v=L2ui97YPPsg
- to structure a deal that works for all, taking into account all of the above, and the future plans of each party.
A good mediator will also enhance communication between the parties by:
- ‘taking the ‘heat’ out of what is said by one party by rephrasing it in more neutral terms to the other;
- Ensuring the timing is right for when key messages are conveyed; and
- if authorised, tell each party the other feels the same way (a powerful message, often unsaid in earlier direct communication between parties).
These are just some of the many techniques a mediator has in their toolkit. No two mediations are ever the same, and a good mediator will select the right tools for the job on the day.
Rebecca Attree, Mediator and Solicitor, Attree & Co