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.
The parties should act co-operatively to agree:
(a) the choice of a mediator, which will 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 on-line platform that the parties propose as the medium through which the mediation will be conducted, eg, Zoom, Cisco Webex, Microsoft Teams, Modron and Skype. It is important that any platform used is suitable for the number of participants, contains a split-screen so that all participants can be seen, 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 will ordinarily “host” the mediation and thus assume responsibility for issuing online invitations to participants and for controlling the participants online during the course of 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 other 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) by which it 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 a draft 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 proposed set of directions to facilitate the expeditious preparation of the dispute for mediation; and
(c) 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 proposed directions or any other matters relevant to the preparation of the dispute for mediation.
The Mediation Agreement
In an effort to preserve the integrity and, in particular, 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 the confidentiality undertaking 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 he has not already done so, the mediator will sign it also and distribute a copy by email to the parties.
A preliminary conference should be held by telephone or by video.
Prior to the preliminary conference, the mediator will 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 bookmarked; and
(b) the preparation and exchange of a mediation summaries of parties’ interests 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.
A short pre-mediation conference should 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.
The participants may be placed in a virtual “waiting room” and join when requested to do so by the mediator.
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 must not record any aspect of the mediation.
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 individual rooms or “off-line” by telephone, email, using any “chat” function on the platform or other secure means of communication with parties logging back in as and when necessary. It is critically important that prior arrangements be made with the mediator before a party goes off-line.
As with a face to face mediation, it is highly desirable that any settlement be recorded in a binding fashion on the day.
(c) Anthony Lo Surdo SC, 2020