Virtual mediation proving its value during COVID-19

By Jerome Doraisamy|21 May 2020
Catherine Davidson

The versatility offered by mediation in the virtual sphere has led to “heightened appreciation” of it as a dispute resolution avenue during the pandemic.

Since the outbreak of the global coronavirus, the ease with which mediations can be carried out virtually has resulted in changing perceptions of this option for dispute resolution.

Its value, Catherine Davidson argues, is borne from considerations of time, cost and quality analysis “in a number of contexts – particularly where commercial and relational needs were acute”.

Speaking to Lawyers Weekly, Ms Davidson – a Sydney-based mediator, director and consultant – said that virtual platforms have “enabled asynchronous communication in the mediation process”, which flies in the face of the typical mediation experience.

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“This ability to use technology to change the way we use various stages of the mediation process adds lots to its potential and scope as a vital tool in early dispute resolution,” she explained.

“There’s also greater opportunity for dispute-savvy clients to work with their lawyers and mediators to design a process that will best meet their dispute management needs.”

Mediators have had to adapt quickly and work flexibly and collaboratively during the pandemic, Ms Davidson mused, bringing together the best of their offerings onto virtual platforms.

“Working with both the strengths and limitations of the various platforms, and holding strong on the fundamental principles [have] demonstrated [responsiveness] which could be both a shift and an opportunity for many mediators who are now taking their process to the problem,” she said.

“That readiness to respond is in tune with market demands for dispute management processes being more client-led.”

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The scope of mediation offerings is “undoubtedly” expanded by the option of conducting such sessions virtually, Ms Davidson continued.

“In terms of geography, time and cost we are across the board more approachable, and it will be important to maintain that energy and agility for particular contexts and kinds of dispute. That said, there will be a need to maintain a balance and be mindful to assess the individual needs of each dispute so that whether ‘in person’ or virtual our process is the best for the purpose,” she posited.

“Managing that assessment case-by-case will be important to viability. There will be industry panels, tribunals and courts [that] will need to accommodate the demand for mediation given the economy and meeting those needs will be an opportunity.

“Regional and international mediation markets will open up where disputants are comfortable with virtual platforms and are keen to avoid the financial and environmental costs of mediator travel.”

That being said, mediators must ensure they assess their individual practices, their new virtual skills, and the demands of both the new virtual and existing in-person mediation market, Ms Davidson warned.

“The issues will be about staying true to purpose, continuing to service our existing niches and developing and refining our offering within those, while being able to meet the needs of newer time and [cost-focused]markets which will inevitably develop as a result of the pandemic experience,” she outlined.

Ultimately, the uptake of virtual mediation indicates its value as a viable alternative in the dispute resolution suite moving forward, Ms Davidson surmised.

“It is a viable alternative in some contexts and for some users. It has potential as a hybrid style of mediation where the mediation process moves in and out of virtual and in-person stages in a bespoke fashion tailored for the needs of a particular dispute,” she concluded.

“It is not, however, a panacea, or a replacement for the in-person, synchronous opportunity of the meeting room which gives everyone at the table a presence, and a touchpoint not replicated on screen.”

Virtual mediation proving its value during COVID-19
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