Introduction
Online mediation can have considerable costs and convenience benefits for the parties.
However, due to its remote nature, online mediation requires bespoke preparatory measures not encountered in a traditional face to face mediation.
Anthony Lo Surdo SC is at the forefront of the use of online mediation platforms.
He has developed the following protocols to ease the process and ensure that online mediation is and remains a viable option for the resolution of disputes.
Preliminary Steps
The parties and the mediator should ensure that they each have access to a strong internet connection and have the capacity to receive, download and affix signature to documents electronically.
The parties should act co-operatively to agree:
(a) the choice of a mediator, which may necessarily require a consideration of the style of mediation that will best suit the nature of the dispute;
(b) a range of dates that suit the parties, their legal representatives and any other interested parties; and
(c) the online platform that the parties propose as the medium through which the mediation will be conducted, eg, Zoom, Cisco Webex, MODRON or Skype. It is important that any platform that is used is suitable for the number of participants, contains a split-screen so that all participants can be seen, the ability to share documents, a function to create virtual break-out rooms and to enable the mediator, as host, and the other participants, if required, to move from room to room and a function to mute video and microphones.
The mediator would ordinarily “host” the mediation and thus assume responsibility for issuing online invitations to participants and for controlling the participants online during the mediation. Also, that way, and just like in a face to face mediation, the mediator is free to move between rooms.
Contact the Mediator
One of the parties contacts the Mediator, preferably by email, copying in the other parties with a view to agreeing:
(a) a date(s) and time for the mediation;
(b) the online platform proposed for the conduct of the mediation; and
(c) if documents are to be provided electronically, the electronic or “file-sharing” means (eg Dropbox, Files2U, File Dropper, PDF) by which documents will be made available to the parties and to the mediator.
That email should also attach a schedule setting out the names of the parties to the dispute and contact details (ie, email, land-lines and mobile phone numbers) of each of the parties and their respective legal representatives to enable the mediator to complete issue invitations and logon links for the preliminary conference and ultimately for the mediation itself and to draft a mediation agreement.
The Mediator’s Initial Contact with the Parties
Once a date, time and online platform for the mediation has been agreed, the mediator should write a confirmatory email to the parties or to their legal representatives.
The confirmatory email will also:
(a) attach a draft form of online mediation agreement for the parties to complete together with requisite confidentiality undertakings;
(b) contain a request that the parties or their legal representatives, if any, engage in a preliminary conference by either telephone or video-conference to discuss the mediation agreement, the online platform to be used, the directions to facilitate the preparation of the dispute for mediation and any other matters relevant to the preparation of the dispute for mediation; and
(c) may contain a proposed set of directions to facilitate the expeditious preparation of the dispute for mediation, although this is also a matter that may be best explored at the preliminary conference or intake session.
The Mediation Agreement
To preserve the integrity, and particularly the confidentiality of the process, it will be necessary for the parties with the assistance of their legal representatives, if any, to identify early and to notify all other parties of the persons who are to attend the mediation. Those persons are to be identified in and sign a confidentiality undertaking which may be contained within the mediation agreement.
The mediation agreement can be signed in counter-parts and signatures affixed by electronic means, if necessary.
The completed and signed mediation agreement is to be provided to the mediator no less than 48 hours prior to the commencement of the mediation at which time, if the mediator has not already done so, they will sign it also and distribute a copy by email to the parties.
Preliminary Conference/Intake Session
A preliminary conference should be held by telephone or by video, using the platform that the parties may by that time have agreed as the means by which the mediation will be conducted.
Prior to the preliminary conference, the mediator may have distributed proposed directions designed to ensure that the parties and the mediator are fully informed of the facts, matters and circumstances that have given rise to and the real issues in dispute. They will include directions concerning:
(a) the preparation of an agreed mediation book of documents and, if documents are to be provided electronically, the electronic or “file-sharing” means by which it will be made available to the parties and to the mediator. For ease or reference, the mediation book should contain an index and be paginated and preferably tabulated and book-marked; and
(b) the preparation and exchange of mediation summaries of parties’ interests (or position papers) together with, where appropriate, a comprehensive schedule of loss and damages.
Consideration should also be given to the preparation and circulation of a draft form of settlement agreement prior to the mediation.
It is envisaged that these directions will be completed well ahead of the mediation to enable the parties an opportunity to consider them and to take appropriate instructions.
Pre-Mediation Conference
A short pre-mediation conference may be held no later than 24 hours’ prior to the mediation via the relevant online platform to discuss any issues pertinent to the mediation, to ensure that the mediation agreement has been signed, the system is working well and that all parties and the mediator are comfortable with the chosen platform.
At that time, the mediator may also provide an updated estimate of fees so that the parties may make appropriate arrangements to secure their client’s share.
The Mediation Day
All participants should log on promptly at or shortly prior to the designated time.
Prior to joining the mediation, the parties, their legal representatives and any other participants should:
(a) ensure that they have closed all applications on their desktop that could interfere with the mediation, for example, email notifications and the like; and
(b) mute their microphone when not speaking.
These steps will not only maintain privacy and confidentiality but is likely to enhance audio and visual quality.
The participants may be placed in a virtual “waiting room” and join when requested to do so by the mediator.
The mediator should ensure that the only persons present are those that have signed the confidentiality agreement. That can be done by asking each of the participants, especially if they are each in different locations, whether they are in a private place and alone. If needs be, the mediator could ask each participant to turn the camera to the room to confirm that they are, in fact, alone.
The mediator will, wherever possible, assign participants to virtual break-out rooms prior to the commencement of the mediation.
With Zoom, a mediator will usually only be able to pre-assign participants who have a Zoom account. Otherwise, the mediator can only assign parties to virtual breakout rooms after they have joined the meeting.
The mediator will usually open the mediation with brief words of welcome, ensure that each participant has audio-visual access and seek an undertaking from each party or their legal representatives, if any, that only the persons who have signed the mediation agreement and provided an undertaking as to confidentiality are in attendance.
This may be followed by an induction type introduction by the mediator in which the process is explained to the parties. The parties will then be free to open if they wish.
Depending upon the platform used and the desire of the parties, private sessions may be conducted either “online” in virtual breakout rooms and/or by using any “chat” function available on the relevant platform or “off-line” by telephone, email, or other secure means of communication, or a combination of both. Participants may leave the virtual mediation and return when necessary.
For security reasons, it will be necessary for a returning participant to be admitted by the mediator. It is critically important that prior arrangements be made with the mediator before a participant goes off-line.
The participants must not record any aspect of the mediation by any means.
As with a face to face mediation, it is highly desirable that any settlement be recorded in a binding fashion on the day and the preparation and distribution of a draft settlement agreement before the mediation may facilitate the completion of the mediation.
(c) Anthony Lo Surdo SC, 2024