On 4 June 2020, early in the morning, I was asked by a long-standing fellow collaborator and mediator if I was available to co-mediate the following morning at 7:30 am on the Zoom Pro platform in an international commercial mediation including participants from the Antipodes as well as Scotland. I have used Zoom Pro conference facilities to collaborate on research with fellow Canadian mediators and lawyers from Ontario in relation to the question of Scotland embracing Mandatory Mediation- I was familiar with the medium-but I had never undertaken commercial mediation online using Zoom Pro-so the answer was yes, but slightly trepidatiously!
Pre-mediation Preparation for the Zoom Pro Conference
The rest of the day was spent familiarising ourselves with the mechanics of using Zoom Pro for an online dispute resolution commercial mediation.
I enabled a ‘Waiting Room’, which serves to allow people to join the virtual meeting; from there they are admitted to the ‘Joint Meeting Room’, which is where the formal inaugural Joint Meeting beloved of all mediators takes place. I also created four ‘Breakout Rooms’-one for each of two litigating parties, solicitors and clients, a Mediators’ room, where the mediators can gather in private to take stock and plan next moves, and finally a ‘Room of Requirement’ (one of the solicitors wondered if this was a Harry Potter reference!)-a ‘Spare Room’ where mediators can bring different combinations of people, for example the legal teams for both sides plus the mediators, together.
When creating the breakout rooms before the mediation start, you need to pre-assign the participants to their correct rooms, using their emails. It is possible to create these breakout rooms and assign participants on the day-but that adds to the technological administration tasks of the ‘Host’ co-mediator, so best to do so in advance if possible. When the mediation began I made my fellow co-mediator the co-host so that she could move from room to room with ease as well.
Using a co-mediator approach enabled my colleague to concentrate on ‘mediating’-whilst I moved everyone around, while still listening intently to the exchanges and noting them. The approach we use when working together can be illustrated as a midfielder, augmented by an old-fashioned sweeper. It is often my job to ask the ‘but what about this issue question’-which is invariably the one the person being addressed doesn’t want to focus on! It’s the part of the mediation I enjoy the most-focusing on risk, or reality testing. This is always done in private breakout sessions to avoid compromising confidentiality until such time as parties are willing to make concessions in proposal form. Zoom Pro is ideal as an online platform in allowing these private, confidential, breakout sessions to take place.
Another thing I did was to disable the ‘Private Chat’ facility, so that people could not send ‘private messages’ to any of the other participants, which would be unseen by the other participants including the mediators. This could be used to undermine negotiating strategies or even the mediator. It could potentially see clients in the dispute sending ferocious or offensive messages to each other. My personal previous experience of this in practice was that private chat could be used in a disruptive and destructive way. I can say that in this mediation it made no difference to the way parties conducted themselves on the day, and in no way did they feel that their ability to communicate with each other privately, in confidence, in breakout rooms was compromised. I suppose the corollary in a physical mediation would be people passing physical, written, messages to each other ‘under the table’ as it were. I have never seen that done- but it strikes me that it would undermine trust and transparency-which to a large extent is something we strive towards in negotiations in commercial mediation as the day wears on.
On the Day
The mediators foregathered early for a briefing on the parties involved and potential flashpoints. Parties were admitted as they ‘arrived’ from the ‘Waiting Room’ to the ‘Joint Meeting Room’. Some brief formalities were exchanged-and then I as the Host ‘opened all rooms’, sending the parties and their advisers to their separate breakout rooms-where the mediators joined each party in turn to identify who would be speaking in the ‘Joint Meeting’ and broadly speaking what they would be addressing in doing so. Each side was informed as to who would speak for the other.
The Joint Meeting reconvened when I ‘closed all rooms’. In the Joint Meeting one of the solicitors spoke at some length in clarifying his view of the legal position-which was contentious. Often lawyers stick to saying ‘I refer to my position statement-but we are here to negotiate in good faith’. The other solicitor chose to refer to his position statement, rather than go through a point by point rebuttal in the Joint Meeting-which I thought was helpful (a full legal debate took place later in the Room of Requirement in which he aired his view fully and in a robust manner). Nevertheless, it was obviously important to the first solicitor, and also to his client who was pursuing the case, to see his case set out fully at it’s highest point. The pursuing client also said his piece, in which he indicated that he had been disappointed and frustrated by what he perceived as the conduct of the defender (present) in ignoring, obfuscating and delaying in dealing with his ‘legal issue’ which in turn led to what the pursuing party felt was unnecessary stress for him, both in delay and in causing him to need to raise legal action to obtain redress.
Apologies- Offeror Beware!
In response the defendant did proffer an apology, which was sincerely meant, although the pursuer later indicated in private session, that he felt it wasn’t. The difficulty with the apology from the pursuer’s perspective was that he felt the defendant was only apologising for everyone being in this conflict position, whereas the pursuer was looking for an apology for what he felt was fault on the part of the defenders. At one point it seemed as though the issue might undermine moves towards resolution-fortunately parties were able to overcome these difficulties as a result of focusing on their real joint interest – seeking overall resolution. Of course, the difficulty for the defender had been that they didn’t really want to apologise in the terms desiderated by the pursuer because that would have been tantamount to an admission of fault. A delicate balancing act is required when considering apologies and their content online just as much as face-to-face!
The Timbre and Tone of the Mediation
A number of things struck me about this. Everyone was participating from the comfort of their own home. They hadn’t been forced to come to the sometimes sterile, strange, formal and uncomfortable conference rooms of solicitor’s offices. Attendance in these places adds to the stress and tension felt, particularly by clients, in taking part almost in a formal set-piece. It almost seemed to democratise participation by creating an equal, level playing field for all participants and by diminishing the differences between people and their roles, rather than highlighting these and emphasising seniority or place. It seemed to make it easier, particularly for clients, to play a fuller, less pressured, role. This was augmented by people’s dress. The men wore formal shirts, but no ties or jackets. The women were smartly turned out and everyone’s hairdo’s seemed fine-despite the fact of lockdown and a lack of hair-salons or barbershops! People were there professionally-but suits or uniforms were not in evidence. This really helped with the ‘timbre’ of the meeting.
That’s not to say that everything was sweetness and light! In mediation, mediators listen carefully for the ‘tone’ of participants’ contributions and take their cues from these. There were some robust, argy-bargy type exchanges and differences, particularly legal, which were keenly felt. However, the getting of these differences off the chests through verbal expression helped clear the air in the mediation. All participants expressed themselves in a very human way-none of this was lost as the result of people ‘virtually’ meeting each other in an online platform. My own take, was that in some way, the exchanges were perhaps more respectful because of the virtual nature of the meeting, where sometimes people can be less restrained when face-to-face, particularly with people they have been in significant conflict with.
The mediation followed the normal pattern; advocacy of each side’s position, followed by discussions privately focusing on difficulties faced by both sides, followed by smaller meetings between representatives of these parties with the mediators in order to really think about those difficulties and their implications, followed by a gradual thawing as both sides began to make concessions taking into account, however implicitly, their own difficulties. Agreement was reached after five hours. Initial movement was slow, but speeded up on both sides and matters seemed to become focused more quickly in a virtual setting. This seemed to be accentuated by the fact that for some participants it was late at night, whereas for others it was early in the morning.
The Icing on the Cake
Virtual mediation using Zoom Pro allowed everyone to be present for this Online Dispute Resolution meeting-from different parts of the world. It obviated the need for everyone, physically, to be in the same place at the same time, with considerable cost to both parties as well as their legal team and the mediators. Truly it was win, win, win.
Everyone really was a winner. I am a convert!
By Paul Kirkwood, Law Society of Scotland Accredited Commercial Mediator, June 2020.