Mediating in the Time of Corona

Conflict will survive the neutron bomb of the current pandemic, just as cockroaches are said to survive a nuclear explosion. Actually the analogy is imperfect - cockroaches don’t survive it seems, while conflict is on the increase. Yet mediators are rising to the challenge!

The colossal impact of Covid 19 and the steps taken to address it are leading to a ‘plethora of defaults’ warns Mario Draghi[1]. This emerging increase in disputes arises from circumstances like contractual failures in supply chains, disputed insurance claims, insolvency issues from business failures, employment losses and property disputes e.g. between landlords and tenants.

There is also the terrible human distress and impact on emotional health and relationships. Rises in marital conflict are reported, with unprecedented numbers of divorce requests, conflicts between parents and siblings, and between siblings, and a rise in domestic abuse and family violence.

How then to process disputes effectively in these times of social distancing? The courts seem keen that as many hearings as possible are conducted remotely. At the same time mediation - even before issuing a claim - is being encouraged by senior judges from Lord Burnett LCJ to Lord Neuberger, former President of the Supreme Court[2]. In the context of a probable deluge of claims arising from the pandemic, they suggest that a litigation process where one party wins and the other loses may no longer be appropriate. Meanwhile court delays are increasing and a backlog developing.

So now more than ever mediation has a critical role to play in managing our differences. With characteristic flexibility, mediators are adapting to this new era. Remote working is being adopted through video conferencing software such as Zoom and Microsoft Teams, and has obvious advantages. No need for travel, accommodation or physical proximity, teams are often slimmer, business attire may not be needed (at least below the waist). Parties can use downtime, when the mediator is absent, more productively.

There are of course challenges in managing this new technology. We have to ensure that confidentiality is maintained, while all participants can be heard and seen. We have to guard against interruption, whether by children, dogs or other domestic realities. In case of a hiccup in the technology it is prudent to have an alternative channel of communication. Timetabling meetings and having regular breaks help avoid what is becoming known as ‘Zoom fatigue’.

More subtly, the eye contact that is a normal part of our communications can be disrupted by the speaker looking at the images on their screen rather than the camera. Non-verbal communication is reduced by only seeing the other’s head and shoulders. It is difficult to read the other when the physical micro-signals on which we rely – consciously or not – can’t be discerned. Even the sight of oneself on screen can be a self-conscious distraction.

The cultural norms of conversational turn-taking can get lost in electronic exchanges. And while the mediator might wish to allow silence, offering time for processing and reflection, “Online doesn’t do silences” says Jungian analyst Michael Whan.  

That said, good and successful mediation is taking place online, and may even have key advantages over direct mediation. There are signs that the intensity of feelings that can arise between disputants – perhaps because ‘face-to-face’ can sometimes mean ‘in your face’ – is reduced. And some mediators are finding that more collaborative attitudes are encouraged by practice runs, the ‘pre-mediation warm-ups’, with parties’ representatives.

Certainly those of us who embrace online mediation now are part of a new era in dispute resolution, one that will likely continue long after the pandemic has become a distant memory.

Lawrence Kershen QC

June 2020

[1] https://www.ft.com/content/c6d2de3a-6ec5-11ea-89df-41bea055720b

[2] https://www.lawgazette.co.uk/law/judicial-heavyweights-call-for-breathing-space-to-save-dispute-resolution-system/5104038.article