Mediating the pandemic: Resolving disputes in the COVID19 Age

Published on March 18, 2020 by Selwyn Black

Mediation is a popular alternative dispute resolution method that brings all the relevant parties into the same room to discuss their perspectives and to try to reach a resolution.

So how do you mediate whilst practising social distancing and avoiding face to face?

While there are a few online dispute resolution platforms, we have looked at strategies using a variety of readily available technical solutions. The purpose of this note is not to review any particular application but rather to draw out the key mediation factors that should be satisfied in any given digital platform.

1. Replicating the room

TIP: Create three virtual meeting rooms (VMR):

a) VMR 1 – Access granted to all parties;

b) VMR 2 – Access granted only to one party and mediator; and

c) VMR 3 – Access granted only to the other party and mediator.

Mediation Elements	Key Element	Online Strategy
Open session	All parties present	VRM 1 used as the main conferencing room for all parties to dial in
Private Caucus	Private discussion with mediator for one party	a) All parties leave VMR 1; b) Each party join their designated VMR; c) Mediator join the designated room of the party calling the private caucus
Client Discussions	Private discussions between the client and legal practitioner	a) All parties leave VMR 1; b) Mediator remain in VMR 1; c) Each party join their designated VMR;

2. Maintaining the advantages of mediation

a) Mediator facilitation: The mediator should take an active role in:

1. managing the online movement of the parties between the open VMR and the designated VMR;

2. directing who should be speaking, as a virtual room limits the verbal and visual cues;

3. facilitating

b) Communication: All parties should use video and audio conferencing to maximise visual and verbal cues:

1. the parties could implement a visual indicator to show their intention to speak – ie. Raising one’s hand;
2. consider using a VMR with features that indicates who is speaking at any one time;
3. each person can consider effective usage of the mute function to reduce background noise;

c) Information Sharing: Timing is important and often parties should only share depending on the progress of the mediation:

1. Consider using a shared drive or folder to upload documents to be shared with the mediator or the other party;
2. Consider preparing a list of important disclosures to be circulated as spoken disclosures may be missed;

d) Brainstorming creative options: The parties should have an ability to collaborate and brainstorm options together:

1. one option is for the mediator to type out the suggestions while sharing the mediator’s screen so all parties can see;
2. another option is for the parties to use collaborative word documents where all parties can contribute

We would like to hear other suggestions for mediating through a pandemic.

Selwyn Black, Partner, Carroll & O’Dea Business Lawyers
www.codea.com.au
Thanks to Yue Lucy Han for assistance with this note.

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Selwyn Black

Selwyn Black is one of Australia’s most experienced commercial law partners. He has significant business acumen, enabling him to work together with clients to achieve practical solutions.

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