Considerations Around Virtual Mediation

In the current climate of physical distancing, mediating online using platforms like Zoom or Microsoft WebEx has gained prominence. Many mediators are well-equipped to offer their services using these platforms and to respond to concerns that counsel or their clients may have. As counsel consider whether or not to take their mediations online, certain factors will be relevant to the decision-making process.

1. Timeline

Any litigation timetables or schedules set prior to the pandemic may need to be revisited, even though the May 13, 2020 Consolidated Notice to the Profession published by the Superior Court of Justice is clear that parties are expected to continue moving forward with cases as much as is possible. Nevertheless, some steps may take longer to complete, and court dates more difficult to predict. Holding a mediation earlier than scheduled, or continuing with a scheduled mediation, may be advantageous to your client, and adheres to the guidance of the Court. If the dispute involves businesses that have been negatively affected by the pandemic, obviously there will be greater value in attempting to resolve the matter sooner than later.

2. Schedules

We often joke during this pandemic that time holds less meaning. However, the fact of many events being cancelled can work in favour of mediation. The decision-makers who must attend a mediation may now find their schedules much more open, and so it may be possible to hold a mediation sooner than previously scheduled. Mediators may have more availability and flexibility.

Alternately, clients (and counsel) may have difficulty committing to a full-day video mediation if they must contend with childcare responsibilities. Consider whether it is possible to schedule breaks during which participants can attend to matters at home, or whether turning off video and/or muting oneself is an option during the mediation. Perhaps it would be easier for some litigants to mediate on a weekend or beginning earlier or later in the day in light of the childcare/work tensions many parents are facing.

3. Security

Suffice it to say that there are privacy and security concerns around using a web-based platform for mediation. Counsel should know what platforms their firms and/or clients are comfortable using, and should discuss any concerns with the mediator in advance. Mediators are well aware of the issues involved in using videoconferencing for mediation and often tailor their mediation agreements accordingly. Clients should be aware of the limitations, risks, and best practices involved in mediating this way, and should be able to commit some uninterrupted time (to the extent possible) in a private space to attend the mediation.