Effective May 19, 2020, Ontario Superior Court Chief Justice Geoffrey Morawetz, by way of a Consolidated Notice to the Profession, has called “upon the cooperation of counsel and parties to engage in every effort to resolve matters. For civil proceedings, this includes attendance at mediation – whether prescribed or not – where a mediator is willing to engage in a virtual mediation”.
Virtual Mediation is now part of the “New Normal” of a post-COVID-19 Ontario justice system.
A mediation is virtual when all the participants do not attend in person. The most popular way to conduct a virtual mediation is by way of videoconference using an online platform such as Zoom (but not exclusively). Virtual mediation can also refer to mediations conducted by telephone and/or email – although these mediums often supplement a videoconference.
In light of the Court’s directive, three members of the Alternative Dispute Resolution Section Executive, who have been actively engaged in virtual mediations of civil disputes this Spring, share their thoughts about its benefits and challenges, as well as the circumstances where virtual mediation may actually be better than in-person mediation.
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Bernard Morrow – Mediator, Principal of Morrow Mediation (www.morrowmediation.ca)
I have been providing mediation services for 25 years, with a focus on commercial, employment and insurance (personal injury and disability) disputes. I used telephone mediation when I mediated accident benefits claims for FSCO back in the 1990s. More recently, I have successfully used phone and email to follow-up on unresolved in-person mediations. I always felt something was lost over the phone – eye contact, body language, emotional cues.
Pre-COVID-19, I was a virtual mediation skeptic. I viewed it as a second-rate alternative to in-person mediation and worried that it could lead to the mediator role being usurped by a computer algorithm.
This crisis left us with little choice: jump on board or get left behind. I selected Zoom as my preferred platform, spending hours learning and troubleshooting. I now see virtual mediation as a tool with a great future in an increasingly online dependent world.
Benefits:
- Ease of use – click a unique link and enter a password to connect
- Similar flow to in-person, with movement between joint and caucus sessions easy
- All you need is a secure online connection
- With no travel and room rental, participants reap significant cost savings
- Parties in remote areas have equal access to experienced mediators, improving access to justice
Challenges:
- Mediator requires both process and technical expertise
- Participants need adequate hardware and a secure internet connection to partake
- Pre-crisis, courts were slow to embrace innovation – will our justice system embark upon a much-needed comprehensive digital transformation?
- Confidentiality, privacy and security concerns cloud virtual mediation’s image
- Videoconferencing does not replicate the intimacy and fluidity of in-person interactions
Circumstances when virtual mediation may be better than in-person mediation:
- Parties live in different jurisdictions
- Health issues make meeting in person prohibitive
- Power imbalance and/or strong emotions make meeting in person ill-advised
- Straightforward disputes involving few issues, limited documents and/or small amounts of money
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Mitchell Rose – Mediator, Settlement Counsel with Rose Dispute Resolution (www.mitchellrose.ca)
I am a mediator and arbitrator of employment, commercial and other civil disputes. I also practise law as a settlement counsel: a former litigator who now focuses on negotiating settlements (including at mediation) while a separate lawyer handles the rest.
Prior to March 2020, my experience with virtual mediation was limited (i.e., continuing in-person mediations by email and phone). I saw little use or demand for mediation by videoconference. However, since the lockdown, I quickly adapted to conducting mediations by Zoom, and I am open to using other platforms. I believe we will see little use or demand for in-person mediation for the foreseeable future. Dispute resolution has forever changed due to COVID-19.
Benefits:
- Accommodating physical distancing – both during the pandemic and beyond
- Saving on travel, room rental and related in-person costs
- Lawyers potentially have more billable time available if travel is not required
- More flexible timing is possible – such as earlier or later beginnings and endings
Challenges:
- Some lawyers, parties, and providers remain unnecessarily skeptical or fearful of virtual mediation. However, this is no longer sustainable now that the Court has called upon counsel and parties to mediate virtually
- Some parties under quarantine are unable to participate if they are without access to technology
- Expanding virtual mediation into areas where mediation is not commonplace may take time
- Ensuring that ADR providers and counsel have the necessary skills to conduct virtual mediations effectively
Circumstances when virtual mediation may be better than in-person mediation:
- Aside from health concerns, where the participants are in different regions, provinces, or countries
- Where there is a real threat of violence or emotional harm from attending in person
- Avoiding the oft-overlooked privacy risks of in-person mediation (i.e., thin walls, loud voices, indiscrete public conversations)
- Where any of the participants is under a disability making in-person attendances challenging or impossible
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I am a litigator at Levitt LLP, and I practice complex employment, human rights and labour disputes. Before 2020, I believed that virtual mediation could facilitate access to justice by providing an economically viable solution to resolve simple disputes, with a low quantum. However, I did not believe virtual mediation had a place in my practice, where disputes are convoluted, and the quantum large.
Benefits
- There is much dead-time in mediations. It is not always practical to work on other files during an in-person mediation. Virtual mediation is ideal for this — in the comfort of my own office, dead-time presents an excellent opportunity to advance other files
- All participants are in their comfort zones. The calming effect of virtual mediation and the distance between litigants can bring down the temperature in a dispute and encourage settlement
- It facilitates access to justice
Challenges
- It is challenging to convince opposing counsel to try virtual mediation
- Negotiating and executing settlement documents can be challenging
- Concern for privacy and security
- Lack of an in-person interaction
Circumstances when virtual mediation can be better than in-person mediation
- If there is too much hostility between litigants, physical distance can reduce tension and encourage clarity
- During the pandemic, virtual mediation is a great way to resolve a file that would otherwise be in cold storage
- When parties are in different parts of the world, it is an excellent tool to resolve a dispute cheaply
There are times when an in-person mediation can be beneficial. A capable mediator can assess a litigant’s body language and use the tension in the room to encourage a settlement. However, in my experience so far, I did not find the lack of an in-person interaction to have made the mediation less effective. The excitement of the new process, a relaxed environment and distance between litigants, made way for creative solutions.
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Technology has provided us all with the tools to continue mediating during an unprecedented crisis, in the best interests of our justice system and those that it serves. While virtual mediation presents challenges, it offers many benefits and promises to have a lasting impact on the delivery of mediation services for years to come.
About the authors
Bernard Morrow is the principal of Morrow Mediation, a Toronto area based full-service alternative dispute resolution (ADR) firm. Bernard has been successfully providing dispute resolution services since 1994.
Mitchell Rose is a Chartered Mediator, lawyer, and the principal of Mitchell Rose Professional Corporation. Mitchell mediates a broad range of civil disputes throughout Ontario. Mitchell’s settlement counsel practice is focused on employment law, neighbour disputes and business conflicts.
Tahir Khorasanee regularly appears on Newstalk 1010 with Howard Levitt. He is the ex-vice chair and current regional representative of the Young Lawyers Division and a newsletter editor of the Alternate Dispute Resolution Section of the Ontario Bar Association. Tahir practices complex employment, labour and human rights disputes.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.