With the challenging effects of Covid-19 over the course of the last eighteen months, there has been a shift towards online mediation (also known as remote mediation) which has now become the new normal for most legal advisors in the resolution of commercial disputes.

An anonymous survey of commercial litigation lawyers (90%) and mediators (10%) carried out this Summer at JMW Solicitors found that only 13% of respondents had attended online mediation prior to the pandemic. The uptake in online mediation as a result of the physical restrictions in place has been significant, with 78% of respondents taking part in online mediation during the pandemic. Of that number, the lawyers surveyed had taken part in somewhere between 1 and 10 mediations, and the mediators surveyed had conducted between 20 and 50 online mediations.

The participants in the survey commented on the advantages of online mediation (compared with a traditional in-person mediation) as well as the challenges. The main advantages of online mediation being listed as the convenience, with parties being able to actively participate in online mediations from the comfort of their homes, and the avoidance of travel which resulted in overall cost and time savings for clients (as well as being more environmentally friendly). Some commented that it was also helpful for clients to have their own separate window and space online, away from their lawyer.

Other advantages included the informality, the elimination of any risk of an unwelcome encounter with the opponent, the lessening of pressure and stress which can sometimes be felt at an in-person mediation in a lawyers’ office, the reduction in down time for all parties, and the ease of arranging online mediations. Some respondents also highlighted the benefit of the parties’ lawyers being able to discuss matters away from their clients and to dip in an out of the mediation where appropriate, with appropriate breaks scheduled throughout the session. This is found to be particularly helpful in enabling key decision makers to be present, particularly at the critical negotiation stage, while also managing other commitments.

The main challenges reported by the respondents mostly related to body language with some commenting that it is much more difficult to read body language including reactions and emotions from the other side and to engage with the opponent without the physical face-to-face interaction. Some other concerns included the risk that parties do not feel the same level of pressure to settle their dispute (with it being easier to walk away from an online process), and it caused fatigue where parties are sat at a computer screen for a long period of time. A few respondents commented that online mediation does not work well where one side gathers in person in a large meeting room as it causes poor audio and makes it more difficult to read the room. Some also reported disruption caused by technology failures especially in the early days of online mediation.

In terms of whether it is better to have clients and their lawyers physically present together or in separate locations during online mediation, 60% of respondents said it worked fine having clients and lawyers in different locations with 40% saying it works better to have them together, in clusters.

The most popular video conferencing facility for online mediations was Zoom, with 73% of respondents using and preferring that platform, and only 4% using a mediation-specific platform. The positives of Zoom were reported as the ease of use, the effective breakout room, reliability, the share screen function and the privacy of conversations. The negatives were reported as the inability to exchange chats and files during the meeting, the delay in people speaking and the interruption caused when two people try to speak at same time and the inherent risk of technology failing if you have a poor internet connection.

In response to the question of whether legal advisors would still use online mediation with the easing of restrictions, 82% said they would, 2% said possibly and 9% said no. Those who said no explained their resistance to online mediation noting that there is likely to be a better prospect of achieving a successful resolution for their client if all parties have invested time and commitment in actual physical attendance at a venue and can advance their arguments more robustly in a face-to-face environment.

In respect of the 82% who said they would use online mediation going forward, 73% said they would use it for the entire mediation process and 9% said they would use online for only part of the process, opting for more of a hybrid mediation with some aspects of the mediation, such as pre-mediation discussions, opening sessions and mediator private caucus, taking place online and everything else taking place in-person.

Overall, the results of the survey demonstrate the success of online mediation since the coronavirus pandemic unfolded and there has been a definite shift in view as to the efficiency and potential benefits of engaging in online mediation. The advantages are convenience and comfort, reduction in costs and ease of arranging, whilst the disadvantages include an inability to read the opponent’s body language virtually, computer fatigue and sometimes technology failing.

It also must be recognised that there are many disputes that necessitate in-person mediation with face-to-face engagement, in an environment where parties can communicate fully in a way which might not be possible on-screen and where mediators can organically detect opportunities for narrowing the parties’ positions.

Going forward, we anticipate that online mediation will have a permanent place (in its entirety or in part) for resolving commercial disputes in the future.