18 May 2021
Even prior to the outbreak of the Covid-19 pandemic, the commercial and civil Courts of England and Wales were struggling (along with many other UK Courts and tribunals) to keep pace with the volume of litigation passing through. Since the outbreak of the pandemic, the Courts have been placed under even greater strain, with Court administrative teams having to adapt to working remotely with dated and limited technology, and with a lack of judicial availability meaning that many hearings have had to be postponed.
This has led to a 20% reduction in Court capacity to deal with cases. Almost all cases now experience significant delays as they pass through the Court system, and these delays are likely to be the reality for some time to come. It is therefore no surprise that there is more incentive than ever for parties to consider using mediation, or some form of alternative dispute resolution, to settle their disputes.
The good news is that because of the various lockdowns and government restrictions, experienced mediators have adapted quickly and efficiently to using the available technology to ensure that mediations operate online. Online mediations now operate in broadly the same way that they would in person, including the use of virtual break out rooms with private discussions with the mediator and connected parties. As a result, online mediations are now an everyday occurrence, running both smoothly and effectively.
Whilst there may be some initial apprehension about whether some of the impact of a more conventional face-to-face mediation might be lost by taking the process online, this has not proved to be the case. Not only are online mediations proving increasingly popular, as well as necessary, mediators are reporting an increase in the number of matters resolved online compared to in person mediations.
At Phillips we are very clear on the benefits of mediation to help resolve the disputes that we look after on behalf of our clients. Mediation, whether online or in person, continues to be an invaluable tool in the dispute resolution process, for the following reasons:
- It often results in a settlement which saves the parties from incurring further litigation costs and wasting management time and minimising the disruption that continuing litigation entails.
- It enables parties to be far more involved in the settlement process than at a Court trial where parties often feel they are surrendering control of their case to the decision of one judge. It is an ever-present risk with litigation that a judge may take a different view of the evidence, regardless of merits which may seem clear to a losing party.
- Mediation is flexible and adaptable in approach; it allows for far more creative thinking when it comes to coming up with ways to bridge the gap between parties, and to reach consensus, whereby both parties can walk away.
- It is by far the best option when parties want to make sure they preserve as much as possible the relationships and reputations that bind them. Mediation has a remarkable de-escalating effect in respect to conflict, providing as it does a forum where both sides can speak freely and be heard. This then allows the parties to pass through any feelings of resentment and animosity, and into a place where differences can be examined, consensus explored, and solutions identified.
- Mediation is entirely confidential, with all parties to mediation being required to sign a mediation agreement which contains strict confidentiality provisions. This contrasts with Court hearings which are public. The confidential aspect of mediation is often decisive in allowing parties to speak openly and freely, without fear of unwanted publicity and those differences becoming public.
Having conducted many online mediations during the pandemic, at Phillips we are confident of the significant benefits in holding mediations remotely. Specifically:
- Mediations can be arranged more quickly and are accessible for all to attend, no matter where the parties are located. It should not be underestimated how much less stressful and daunting a mediation can be for parties if they are connecting remotely from their own home.
- The cost and time of travel is removed. Mediations will usually last a full day and will be tiring. Therefore, removing the need to travel is a positive.
- Not being physically present can help diffuse tensions that may run otherwise high at a face-to-face mediation. This can help in reaching a compromise.
- Parties are less likely to see the mediation platform as a stage on which to over-present their grievances and their side of the case, and instead will focus more quickly on potential solutions to what lies between them.
Some of these advantages, particularly regarding costs, time and logistics mean that online mediations are likely to remain a smart and popular option for parties even after the current restrictions are fully eased.
If you would like to discuss how we can assist you or your business in exploring how mediation may be able to help you resolve a dispute you are facing, please contact Max Hope or Simon Arneaud:
Alternatively click here to go to our contact page.
This article is current at the date of publication set out above and is for reference purposes only. It does not constitute legal advice and should not be relied on as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.
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