Courts are making fast, adaptive changes to civil litigation processes to accommodate social distancing restrictions and protect the health of public workers and the public at large. Notwithstanding the temporary measures in place that allow court processes to continue, parties are being increasingly encouraged to resolve their disputes between themselves where possible.
In this climate, and where listed court matters have been adjourned to dates to be determined in the future, there has never been a more critical time to resolve disputes as expeditiously and inexpensively as possible through mediation. Parties must be agile and adaptive in the current climate to ensure mediation processes happen as safely and smoothly as possible.
Virtual mediation services
Due to the impacts of COVID-19 and the enforced social distancing restrictions, McCullough Robertson Mediation Services are offering virtual mediation services over this period. It is important that parties are provided the opportunity to safely resolve disputes via mediation. To that end, we have outlined the following steps for consideration to aid mediation occurring with limited disruption in the current climate.
- Utilise video- and teleconferencing tools
Parties are encouraged to utilise videoconferencing tools, such as Cisco Webex, Zoom or Microsoft Teams to conduct the mediation. McCullough Robertson Mediation Services are already successfully utilising Cisco Webex to conduct video-conferences with clients. Supreme and District Courts are also seeking to maximise use of this technology, with a preference for hearing matters via telephone, and only using videoconferencing for contentious matters or where there is a special need to do so. Parties should be conscious of the terms of use of each of these platforms, however, particularly with respect to confidentiality.
- Consider practical arrangements
Prior to mediation, parties should set up a preliminary conference with the mediator to discuss the practical arrangements that will allow the most efficient conduct of the mediation, such as location, timing, and mode of communication. The preliminary conference will be conducted by video conference or teleconference. The preliminary conference will allow clients the opportunity to familiarise themselves with the mediator, ask questions about the mediation process, or raise any particular safety concerns they have.
- Utilise position papers
Discussions via video- or teleconferencing, whilst useful, do not allow the free-flowing discussion that most parties can expect in a physical mediation. As such, parties are encouraged to utilise position papers as a tool to clearly set out their respective claims, the key facts and law in dispute, and the parties' expectations of the mediation process. Although not standard practice under normal circumstances, parties should consider providing their position papers to one another and the mediator well in advance of the mediation, to aid the mediation occurring as smoothly as possible.
- Location of each party
On the day of mediation, it may not be preferable to have all parties together in one room, or for lawyers and their clients to be together in one room due to social distancing requirements. However, appropriate arrangements should be put in place if this is preferable to ensure proper spacing amongst individuals. For example, it may be appropriate for parties and their legal representatives to conduct the mediation in a separate room in the same or even different buildings, where the mediator is able to visit as necessary, or exchange documents where appropriate.
As each mediation is different depending on the number of parties involved, their location, and unique issues to be addressed, McCullough Robertson's mediators will work with clients to tailor the most effective virtual mediation service.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
