4 February 2021
As students and professionals from countries spanning the globe gear up for the 16th annual ICC International Commercial Mediation Competition, Oliver Carroll of Clifford Chance has five tips to navigating mediation in a digital space.
The COVID-19 pandemic has brought new challenges to all manner of dispute resolution. Whether it is becoming accustomed to addressing a judge from your bedroom via Zoom, taking instruction from your client on WhatsApp, or trying to guess your opponent’s hobbies from their home office bookshelves, the new world of remote-working has brought new difficulties and forms of workplace and entertainment in equal measure. What has not changed, however, is the demand from parties to resolve their disputes expeditiously and efficiently, including through mediation. This begs the question: how do mediations and practitioners need to adapt in this brave new world? It is likely to be here to stay, so here are five top tips for surviving and getting the most from a virtual mediation.
- Achieve buy-in
On the face of it, some of the typical hurdles which parties face in getting decision-makers around a table have evaporated. Remote working has removed the need for expensive and time-consuming travel, allowing parties will to readily be available to work on other projects during the course of the mediation. In short, the logistical commitment is less, and the cost-to-benefit ratio of engaging in mediation should be much improved.
However, there remains a view among some–in particular where there may be a cultural attachment to in-person deal-doing–that virtual mediation is sub-standard or second class. New logistical challenges also present themselves: mediating a cross-border dispute will now require scheduling to account for different time zones given that parties will not be in the same place at the same time. Mediation days may also need to be split to account for this, as one party’s morning may be another’s late evening. Add to this the fact that management buy-in may be more difficult to achieve where in-person arm twisting is not possible: acquiring the requisite investment from mediation parties can be just as difficult in the virtual world as it was in the “good old days”.
- Preparation is key
The key to any successful mediation is prior preparation. What are parties’ red lines? How will they be navigated? How do party representatives best frame their client’s interests? All these questions remain as important in virtual mediation as they did in the in-person world. The key difference in virtual processes is that it will be harder to do many things ad hoc: slipping a note to your client, having a quick chat between principals in the corridor, or knocking on the door of the other party’s room can all be more cumbersome done remotely – especially if parallel communication channels need to be set up. This means that setting up your processes in advance, including having a dry run with the mediator, is essential. Make sure you have the means to talk to your client confidentially, ensure all parties know how to use the platform being used, including how to mute their microphones, and if you are an adviser, drill your clients on when and how to move between virtual “rooms”. This will save time, create a professional and business-like image, and expedite discussions.
- Read the signals
In the virtual world, the dynamics of in-person persuasion, argument, and even confrontation, have been altered by the need for virtual communication. We all know that in virtual meetings the personal dynamic will be different, as parties will lose the benefits of physical proximity: the uncomfortable shifting in a chair, twitching of an eyebrow, or stress-induced blushing are vital signals to detect. Remote mediation amplifies certain signals but others may be lost altogether: a party representative twiddling their thumbs or slouching may be invisible on screen. However, it is not impossible to develop empathy remotely, and you have to make the most of the signals that are visible and audible.
Listen closely to what is being said, how it is said, and watch out for any clear body language signals. Some might be clearer on screen than they would be in person: the ability to view all parties in one “grid” without craning your neck to look around a table allows a mediation attendee to observe all parties more discreetly and to “read the room” perhaps more effectively than in a physical setting.
In the virtual world, honing your presenting and listening skills and developing an acute awareness of all that you can see (and can be seen of you) on screen might make the difference between negotiating a successful outcome, and failure to do so.
- Keep up the pressure
One of the key advantages to a virtual mediation is that reluctant parties will not feel that the whole day has been “lost” if there is no settlement at the end of it. They may end up feeling more inclined to mediate again as a result. However, it has long been the case that requiring parties to spend significant time in a common venue, or “in the bunker” as we say, focusing on settlement, free from distractions, usually helps to prepare them to make the necessary concessions to achieve settlement. At the very least, the weight of expectation of settlement at the end of a one- or two-day summit tends to focus the mind: those travelling to a face-to-face mediation may push harder to reach settlement if they wish to avoid having to bring back the bad news that the mediation was a waste of time. This “pressure cooker” effect is hard to replicate when parties are able to walk away from their desk and easily disconnect from the process.
This means that clearly articulating the commercial rationale for settlement at the outset is all the more important in a virtual world. Ensure to come to the mediation armed with the facts: how much will it cost all parties to take your dispute to trial? What will the reputational damage be? What are the potential benefits in laying the groundwork for a constructive relationship now, rather than after a painful court or arbitral process?
- Maintain your stamina
Virtual mediation can be more tiring than the real thing. This may seem counter-intuitive: home comforts are at hand, parties are not relegated to conference centre catering, and you can even mute your opposing counsel. However, keeping up concentration for prolonged periods sitting in front of a screen is far more demanding without the stimulation of personal interactions in a physical negotiation. Aside from the obvious–ensuring regular caffeine breaks and a plentiful supply of off-screen snacking– parties must be prepared to keep up the momentum as the virtual day wears on.
Clifford Chance is the Headline Sponsor of the 16th ICC International Commercial Mediation Competition, which takes place digitally for the first time from 5-11 February 2021.