REUTERS | Navesh Chitrakar

Mediation update: can parties mediate by telephone?

Faced with the 2019 novel coronavirus disease (COVID-19), everyone’s primary focus in these extraordinary times, is doing all they can to protect everyone’s health. At the same time, many are being forced to wonder about business continuation and ways that they can quickly collect aged debts or de-risk by settling disputes.

Some are turning to mediation to achieve their current urgent needs, particularly as mediation is a flexible process that can be organised and take place within days and, if a settlement is reached, deliver a fast and final result.

However, recognising that most mediations involve people physically meeting, many are asking can parties mediate by telephone?

Here are my thoughts.

Can parties mediate by telephone?

Yes, parties can and are mediating by telephone.

Recent weeks have seen many quickly and easily convert their “in person mediations” to “telephone mediations”, particularly as they recognise that the use of and reliance upon the telephone in mediation is not a new concept.

Even before the coronavirus lockdown, parties used the telephone for parts of “in person mediations”. For example, for case management reasons, most mediators ask to speak to party representatives on the phone before the mediation day. Sometimes, if issues arise before the mediation day, a series of private pre-mediation calls is necessary or even a joint call. In multi-party disputes, mediators often ask to speak to groups of parties (such as all the claimants or all the defendants) in a joint call before the mediation day. Further, in many cases where settlement is not achieved on the mediation day, it is agreed that the parties and the mediator will carry on talking on the phone in the days that follow (including in joint calls).

Many will also have experience of some attendees at “in person mediations” only joining by phone. This may have been because, for proportionality reasons, it was decided that parties’ lawyers would stay in their own offices on the mediation day while only the decision-makers met with the mediator. On such occasions, parties’ lawyers would ensure that they were available during the time-period of the mediation to give advice or draft necessary settlement agreement documents (which was done over a series of calls and emails), but could otherwise carry on with their other work that day. It may also have been because only some key individuals could physically attend (such as one of the partners), leaving the others to join by phone.

How does telephone mediation work?

A telephone mediation works in largely the same way as an “in person mediation”.

As with any mediation, the first step is all parties agreeing they wish to appoint the mediator to mediate, although now this agreement will have to include that the mediation will be by telephone. A date and allotted time period for their telephone mediation will then need to be agreed (for example 10.00 am to 6.00 pm).

Once appointed, the mediator will begin case management (just like in any other mediation). The first step will be for the parties to agree a mediation agreement that includes, as standard, terms about the confidential and without prejudice nature of the mediation and confirms their attendees and that someone will have authority to negotiate and settle the dispute. However, that document must also reflect that the mediation will take place by telephone and, as there is no opportunity to physically sign, be signed and returned to the mediator electronically.

As always, the mediator will set a timetable. For some time now, many have sent papers (to each other and to the mediator) electronically. Usually, the mediator will invite the parties to attend a pre-telephone mediation day telecon during which the mediator can check arrangements and start the conversation. The timetable may contain extra steps to assist with the fact that no attendees will be meeting in person. Every case will differ, but those steps may include the mediator asking for private papers for the mediator’s eyes only.

Mediation is a flexible procedure moulded by the mediator to suit the dispute in hand. Therefore, as with all mediations, there will (and can) be no fixed procedure for the telephone mediation day. The mediator may begin the telephone mediation day by calling each party separately or asking for a joint call. A series of different kinds of call will no doubt follow, which may include calls of groups of individuals such as all the decision-makers or all the lawyers. The mediator’s quick “knock-on-the-door” is likely to be replaced by a very short update call or an email to say a party is still thinking and talking. As ever, the telephone mediation will continue until settlement is reached or (unless there is an agreement to extend) the agreed time period expires. If a deal is reached, the party representatives will draft the appropriate settlement documentation (using email and the telephone).

Conclusion

The very essence of mediation is collaboration and, together, finding solutions to perceived hurdles.

Agreeing telephone mediation and building on previous experience of using the phone to negotiate settlements may be the first collaborative step on the road to finding a quick and final solution to a problem that works for all.

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