I well recall my last face to face mediation – it was in Manchester in March 2020. We were aware of the virus, but had no idea of the seriousness or the disruption to our personal and professional lives that was around the corner. I had travelled up the night before and going home was delayed when I missed my connection at Birmingham New Street. I had incurred expenses of nearly £300 – most of which were recouped from the parties but I was still out of pocket. The disabled claimant had struggled in to central Manchester and experienced a very long and tiring (albeit ultimately successful) day.
Was this the best way to conduct the mediation? At the time it was the way we did it.
Within just a few weeks in-person mediations were no longer possible. But would parties still be prepared to take their cases to mediation, when they would not be meeting the mediator in person, when the contact would be online and when lunches would have to be provided by themselves?
After only a short period of time the answer became clear – parties would still refer to mediation (indeed with increasing delays in progressing litigation there was arguably a greater need for it); while there would be no direct personal contact between the mediator and the parties, the common platforms (Zoom and Teams) did allow for private meetings as well as open sessions. Lay Claimants – particularly those with disabling injuries – were able to attend the mediation with minimal challenge. Mediators were able to see and hear from everyone and, with experience, mediators quickly became astute to developing a strong sense of 'togetherness' online. The downside – lunch is now a quickly cobbled together cheese sandwich as opposed to a delightful array of freshly cut sandwiches and fruit from the local delicatessen.
So how does it work? It is actually very straight forward and very much led by the mediator. Using Zoom, the mediator, as host, will create 'breakout rooms' – one for each party and one for the mediator him/herself. Parties’ arrival via the waiting room should be staggered to enable the mediator to greet the parties, and having collected the full team in the lobby the mediator can transfer them into their private room.
The mediator will repeat the process with each of the other parties until everyone is settled in their respective rooms. Normally the mediation will then progress to an opening session, where firstly all attending will be invited to introduce themselves. Representatives of each party will then 'open' the mediation on behalf of their client with a short statement of what they hope to achieve from the mediation.
In personal injury and clinical negligence cases, this is also an opportunity for the lay Claimant to share an impact statement. This has the advantage of being much more 'real' than a written statement and can help to develop a sense of empathy with the Defendants. It can also provide the Claimant with a genuine sense of contributing to the mediation. In appropriate cases the Defendant may also wish to provide an apology at this stage.
Apologies are very important and careful consideration should be given to who will deliver the apology. In clinical negligence cases, it may well be appropriate for the apology to be delivered by a senior member of the Defendant Trust who could join the meeting just to deliver the apology – an example of the benefit of flexibility offered by online mediation.
After the opening joint session, when hopefully an agreed sense of wanting to achieve a resolution has been generated, the hard work begins. For the majority of the mediation from here on the mediator will be 'shuttling' between the private rooms but there is always the potential, should it be considered helpful, to use the mediator's room for a counsel to counsel, lawyers only or any other combination meeting.
Mediations tend to follow a pattern of initial optimism following a well-planned joint session, to irritation with opening offers followed (normally and eventually) by common ground being reached and a settlement agreed. The settlement will need to be recorded in writing - I normally invite the parties to exchange emails with either the terms of the agreement recorded or even the draft order (if the mediation is post-issue). In my experience any order tends to be in the form of a Tomlin order (although to see a view as to why that may not be the most appropriate please see the article by Justin Valentine of St John's Chambers which can be found at:
Settlement rates in my practice and for those practising in my area of Clinical Negligence and Personal Injury are running at the same level as (if not higher than) before, claimants are more relaxed, there is greater flexibility for those wishing to attend only part of the mediation, and costs are considerably reduced. Do I want to return to struggling home for hours on the train or do I wish to step out of my home office into the lounge, break open a beer and start my family time straight away? At the moment I can see lots of reasons why our experiment with online mediations may well evolve into normal practice.
Andrew Hannam is chairman of the ASWM, and regularly mediates in the South West and throughout the UK, specialising in clinical negligence and personal injury disputes.
For full details see https://www.aswm.org.uk/andrew-hannam
The Association of South West Mediators (“ASWM”) is a group of independent mediators based in and around the South West of England. The group’s aims are:
To promote the use of mediation, particularly within the South West region;
To provide a choice of experienced and reliable mediators to those wishing to find a suitable mediator;
To provide professional support to mediators across the region with a wide range of different areas of expertise
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