Virtual mediation

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In our series of articles on mediation, we will now address remote mediation. By remote mediation, we mean mediation through technological and communication tools, including by conference call and video conference. For the purpose of this article, we will focus on video conferencing using information technology system. For clarity, we will use the term "virtual mediation" to refer to this mediation format.

In this article, we will explore some situations where it is interesting, and even sometimes necessary, to use virtual mediation. We will also discuss the benefits of this format and its general process. Finally, we will discuss the security and confidentiality elements of virtual mediation.

Situations:

There are several situations that can lead the parties to consider the use of virtual mediation. Indeed, remoteness, difficulties to find common availability, costs, transport problems (e.g. flight cancellation) and health problems (as long as they do not affect the ability to make informed decisions) are some examples of situations where virtual mediation can overcome these obstacles.

At the time of writing this article, it is disconcerting that many of these situations are brought together at the same time. Indeed, we are living in a global pandemic situation with COVID-19[1]. As a result, a large majority of countries have suggested or even imposed social isolation in order to reduce the spread of the virus and smooth the contagion curve, all in line with the recommendations of the World Health Organization[2]. Of course, this is an extreme case where citizens must avoid public contact. 

This situation of social isolation is likely to increase the time of litigation proceedings before courts. Consequently, virtual mediation is a way of advancing the vast majority of contentious cases that are delayed otherwise by this situation.

Advantages:

Let's see some benefits of virtual mediation for the participants and even sometimes, for the mediator himself.

First, it is generally much less expensive to use virtual mediation when participants are far away. Transportation costs and time are factors to consider in the elaboration of the mediation process. In addition, when mediation takes place over several days, some sessions may take place remotely and others may take place in person. Therefore, virtual mediation allows for flexibility that hardly exists in judicial courts.

Second, the fact that parties can access virtual mediation from anywhere (with an internet or cellular connection) is a definite advantage. Let's take the example of the participant who has to travel regularly because of work and thus, has limited availability. By using virtual mediation, it will be possible to arrange the sessions to minimize the impact on his professional life.

This situation is also applicable to the mediator himself. For example, parties may choose a specific mediator who is unavailable because of business travel or simply because the mediator has a professional home in another country. For their own reasons, the parties may strongly want this mediator to accompany them in the process of resolving their dispute. Virtual mediation can be an alternative to proceed. 

Nowadays, most documents related to a conflict are either already on IT support or can be transferred quickly (e.g. scanning, photo). As a result, the exchange of documents can be achieved very quickly through virtual mediation.

In most cases, the mix of the advantages mentioned above will allow parties to rapidly reach solutions to their conflicts. Indeed, it is reasonable to assume that virtual mediation, like "classic" mediation, will provide an opportunity for the parties to try to resolve their dispute before it becomes more important due to delays in taking actions.

General virtual mediation process:

On this point, it is interesting to note that the virtual mediation process can be conducted essentially as a "classic" mediation. As we will see, except for the physical presence in a room, the process is essentially the same. It is also possible to use a mixed process where, for example, one party would virtually join while the other parties would be in the same "physical" room with the mediator.

In general, "classic" mediation takes place principally in plenary session (with all parties in the same room). At certain times, the mediator may employ caucus where he will meet with the parties separately in different rooms in order to exchange confidential points. Each party may also use caucus, without the mediator, notably to process information and confer privately with counsel, advisor or other participant.  

In virtual mediation, the mediator can use different communication channels to reproduce the same function. Indeed, there will be a common channel for the plenary section and specific channels for each caucus with the parties. These specific channels will ensure that the exchanges and related documents remain confidential. The mediator will then be the only one who can move from one channel to another in order to maintain the dynamic during mediation.

On the mediator's side, he will be able to use a virtual "whiteboard" to note the elements related to the progress of mediation. He shall be able to visually share models and examples with the parties in connection with each stage of mediation, including the development of solutions. Thus, this will be similar to the experience of mediation in the same room.

Subsequently, if the parties reach an agreement or not (a mediation summary), the mediator will then be able to use digital signature tools to finalize the documents with the parties.

As one may notice, virtual mediation can achieve the same results for the vast majority of situations just as "classic" mediation does.

Security and confidentiality elements:

First, when we talk about virtual mediation, it is essential to have the technological tools to participate. Today, we can assume that mediation participants already have the basic tools to join. Thus, relatively new computers and smartphones allow quality audio-visual transmission for all. Depending on the virtual mediation platform used by the mediator, the parties may need to add a few functions to ensure the security and confidentiality of communications.

It is possible that parties will need to download specific software to access the virtual mediation platform. The integration of a microphone and a digital camera (webcam) may be necessary, although unlikely given the general presence of these elements in laptops and smartphones. An acceptable quality of audio-visual transmission will be required to ensure that this does not interfere with the mediation process.

In addition, security software (anti-virus) will verify that the device used is initially safe from the "inside". Ensuring that you have up-to-date versions of operating systems and software will be one way to keep them running smoothly while minimizing the risk of security vulnerabilities.

The use of a secure internet or cellular connection will be necessary for virtual mediation. For parties, the use of a virtual private network (“VPN”) may be necessary. It is possible to add this feature at a low cost with several recognized security software providers. 

The mediator has the first responsibility to ensure that his IT platform is safe and confidential. The software used, encryption, firewalls, VPN and exchange control will be some of the elements that he has to verify before the exchanges surrounding virtual mediation begin. This obligation will continue even when the mediation process is completed.

Conclusion:

Ultimately, the mediator will consider whether or not to use virtual mediation. Indeed, some situations may be incompatible with this mode of operation. However, as we have seen in exploring this format, virtual mediation has many advantages including flexibility, speed, accessibility and cost reduction. In addition, it allows for a quasi-identical process to "classic" mediation. Finally, virtual mediation can achieve the same results for the parties.

Simon Blais is a certified mediator in civil, commercial and labour issues. He assists parties in the process of alternative dispute resolution. He also provides virtual mediation services while ensuring the security and confidentiality of the process.

REFERENCE:  

[1] WHO Director-General’s opening remarks at the Mission briefing on COVID-19 -19 March 2020, World Health Organization, accessible at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mission-briefing-on-covid-19---19-march-2020, as of March 19, 2020.  

[2] Id.