Mediator Guide toOnline Mediation

Centre for Effective
Dispute Resolution
100 St. Paul'sChurchyard, London
EC4M 8BU+44 (0)20 7536 6070
www.cedr.com
adr@cedr.com

Mediator Guide to Online Mediation
Introduction
Set out below is a guide to conducting online mediations using a video conferencing
service provider. Our experience at CEDR is that video conference mediations can be very
successful by providing a more cost effective and environmentally friendly mechanism for
dispute resolution.
In order to create an environment which is conducive to settlement it is important that themediator think carefully about the process from the outset and that he or she is familiar
with all the relevant equipment and functions. Lastly, if things don’t work out as planned –always agree a Plan B (see further below).
Equipment
Having the right kit is key to conducting a successful online mediation. Mediations
may be conducted simply by using Smart Phones when in a pinch.

However,

CEDR have found that online mediations work best when they are done using theproper equipment. There are certain requirements that are essential to any online
mediation, whilst others may be seen as nice to have or enhancements.
1.

Essential Equipment/Functionsa.

A laptop/tablet with a microphone and camerab.

A strong secure internet connectionc.

A secure video conference service provider such as Zoom Pro, Webex, GoToMeeting,or Skype for Business, which has the following functions:i.

Waiting Room – holds all participants on their own separate lines until themediator opens the call. Participants are not able to see or interact with themediator, which ensures everyone is present at the time the call is opened.
Please note that this function does not allow participants from the same party
to speak to each other. Everyone is held on a separate line.

ii.

Breakout rooms – the ability to allow each party to have their own separate
virtual room where they may discuss matters with the mediator or amongst
themselves confidentially.

2.

Optional Equipment/Functionsa.

A separate microphone, possibly with headset. These tools may assist you withclarity and volume. Models such as the Platronics Blackwire 3200 are a reliable,
cost effective option.

b.

A large or double screen, which will assist with viewing documents.

Guide to Online Mediation

Mediator Guide to Online Mediationc.

A video conference service provider with screen share and a white board function
can assist with discussions and make the mediation run more smoothly.

d.

A stylus that interacts with your laptop or tablet in order to use the white board
function mentioned above.

Party Participation
Most video conference service providers, require the host or organiser to have a paid
account. For example, the free version of Zoom does not satisfy security requirements
and only allows meetings to last for a maximum of 40 minutes. Zoom Pro however, issecure, allows for up to 100 parties and enables the mediator to carry on a marathon
meeting if necessary.
Typically, the attendees do not need to have a paid account and they can register andjoin the mediation for free. When working with a law firm or institutional client they
may need administrator approval to download the necessary software and you should
check this with each participant in advance.
As good practice, the mediator should check that these points in advance and request
the parties to log-in and test that they can use the system. One way to do this is to holdthe introductory and/or preparation calls using the videoconference.
Presentation
The Parties will be able to see you from the waist up and the background in your room.
In order to showcase your professionalism please be mindful of:1.

Background – ensure it is neat, tidy and professional. If you are in a spare roomensure that the bed or clothing is not visible. Also, refrain from using an optional
background available through the videoconferencing service provider. It may be
tempting to conduct the mediation with the Tower Bridge in the background, butthese backgrounds are meant to be used with a green screen and will become
skewed if not applied properly.

2.

Lighting – ensure that your surroundings are well lit. In particular, you do not wantto have a bright light or window behind you. This will make you appear dark on thepartys’ computer screens and will make it difficult to see your face.

3.

Framing yourself – be mindful of your distance from the screen and try not to sit too
close or too far away. As a rule of thumb, your head should take up a maximum of
60-70% of the screen. Always sit with your shoulders back and chin-up.

Guide to Online Mediation

Mediator Guide to Online Mediation
4.

Look at your audience – it will be tempting to look at yourself in the corner of thescreen. Be mindful of this and try to look directly at your audience to ensure you aremaking the best use of eye contact.

5.

Familiarise yourself with the technology
In order to install confidence in the parties, it is imperative that you are the expert
in using the technology and that you are able to competently use the technology.
Most of the major providers have fantastic users guides which you can watch
online (e.g. Zoom https://support.zoom.us/hc/en-us/articles/204772869-ZoomRooms-User-Guide).

Process Design
As all mediators know, every mediation is different and it is very important to consider
the process which will work best for the parties, taking into account their technicalcapabilities, available time, attention spans and environment.

Sitting on a videoconference for eight hours or more can be a challenging and draining experience foreven the most focused and determined participant.

Add to this, distractions, suchas interruptions at home, emails and phone calls and loss of engagement from theparticipants is a much higher risk.
Our experience is that mediations lasting 3-4 hours, can typically carry on in the samemanner (subject to the Ground Rules listed below), whether they are conducted inperson or as a video conference.
When approaching a case that would typically take place over a full day, try to thinkoutside the one-day mediation model and consider the following:
Logistics
1.

Are all parties joining the mediation in the same manner? It is best to conduct themediation on an even footing where possible and we encourage parties to join in
the same way (i.e. everyone joins by video conference or lawyers attend in person
and the clients attend by video conference). Mediations may be conducted in otherways, but in our experience this approach is best practice.

2.

Will each party’s participants join separately or together (i.e. will each member of theparty log-in from a different location or will they all be in one room together)?

3.

Where will the participants join from – both in terms of location (are there different
time zones involved) and environment (are they joining from a home office or are

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Mediator Guide to Online Mediation
they dialling in from a room where another member of the household may walk-in
such a bedroom or sitting room)?
4.

Consider timing of sessions and breaks and keep the parties clearly informed on
logistics. More rigour may be required than in mediations where all parties areavailable physically during the process.

a.

Sessionsi.

Keep plenary sessions to a maximum of 60 minutes

ii.

Keep breakout sessions to a maximum of 30 minutesb.

Breaksi.

Schedule screen breaks for both yourself and the parties. You could have 15
minutes every two hours or build in an extra-long lunch break of say two hours.
Encourage the parties to get away from their computer, get a change of scene
or even some exercise.

Work in Advance of the All Party Mediation
This consideration is key and will have an impact on all other aspects of the mediation.
5.

How much work can be done with the parties in advance of the mediation? The
mediation starts from the moment the mediator makes contact. You may want toschedule several early calls with each of the parties to complete the exploration andpossibly the beginning of the bargaining stage before bringing everyone together.
You may want to use the same communication system format for communications
from the outset, to build trust, connectedness and regular practice experience withthe communication system.

6.

Consider splitting the mediation over several days. This will need to be agreed withthe parties and a deadline will need to be set in order to ensure focus. For example,
you may want to schedule the mediation to begin in the afternoon of day one lastingfor 3-4 hours and then carry on with another 3-4-hour session on day two, aiming tofinish at lunch on that day. When scheduling a cross-border mediations allow forinternational time zone considerations.

7.

Check carefully on the likely environment the parties will be using for the videoconference, so you can manage in advance questions of privacy, others present,
possible interruptions or absences.

8.

Consider carefully the information needed to negotiate. Parties will expect their

Guide to Online Mediation

Mediator Guide to Online Mediation
opposing party to be in a position to more readily access information if they areattending remotely. Conversely also watch out for parties who try to accessdocuments and focus on them, distracting everyone from what is important.
9.

Consider using a tailored mediation agreement and process flow plan document sothat parties are clear about logistics, privacy, how the day will work and conclude.

At the Party Mediation
10. Set firm ground rules about how the day is going to work (see below):11.

Give the parties tasks to complete during the breakout sessions – but be sure toagree who can be involved outside the participants. This will keep them focusedand guard against distractions or interruptions.

12. Give clear timing guidance to allow those not with you, to have a break from theirscreens.
13. Use a messaging function to manage expectations and alter agreed timings orprocess. Also use this function to allow parties to message you that they want to seeyou.
Settlement
14. Agree in advance how the settlement agreement will be drafted and executed.
In particular parties should be aware of any formalities that are required by theirorganisation.
It is important to address these considerations up front with the parties and tailor themediation process accordingly.
Ground Rules
In addition to the normal rules of mediation which you are familiar with, such as theprovisions set out in the CEDR Model Mediation Code, there are online specific issues which
you need to consider, as you will not have full visibility and control of the environment where
the mediation is taking place.
1.

Confidentiality
Reinforce the confidentiality provisions and the effect of without prejudiceprivilege.

2.

Privacy
Ensure that the parties agree in the mediation agreement (and remind themon the day) that only individuals listed on the participant form may attend or bepresent in the rooms where each party member is joining.

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Mediator Guide to Online Mediation
3.

Recording
Agree in writing (and remind the parties on the day) that recording is not
permitted. Ensure that you have taken steps to prevent recording through thevideo conferencing software. As the Host or Organiser, you will most likely haveultimate control of this.

4.

Planned or Possible Interruptions
Know in advance and discuss with the parties. If a participant may have aninterruption from another household member it is important to alert the otherside to this possibility as unexpected interruptions can negatively impact the trust
between the parties. For instance, if there are small children present in the house
who may interrupt.

5.

Joint meetings
Keep microphones on mute. This should be the default setting to avoid
distraction from multiple background noise.

6.

Actively manage communication
Given the virtual setting the mediator will need to more clearly indicate whose
opportunity it is to speak.

7.

Use of Phones/Checking Emails
Parties will be receiving emails and communications on the device they use tolog-in to the mediation. Agree ahead of time if participants should have email
and messenger functions closed and off during the mediation.

8.

Explain how the mediation will run
From timing and conclusion to how the waiting room and breakout functions
work. Provide parties with a guide and discuss it with them and their advisors
prior to the day.

9.

Have a Plan B
Give the parties a clear process to follow if there is a technical issue that arises. In
particular, please be clear with parties what steps to take should you lose yourconnection. This should include instructions on how to reconnect and a back-up
telephone or chat function to communicate.

Guide to Online Mediation

Mediator Guide to Online Mediation
Professionalism
1.

Mediators have many matters to juggle in a normal face-to-face mediation. Ensure
you have practised sufficiently with the conferencing technology so that you canwork with it in a relaxed way and stay focused on essential communications.

2.

Encourage adoption of regular screen breaks for yourself and the parties, theequivalent of reflection time or walking between rooms.

3.

Consider how you are going to access technical support or personal refreshments
support during the day. Consider whether you need to alert the parties to any
arrangements. It is important to be transparent with the parties if there are likely
to be interruptions or others who may come across mediation communications.

4.

The core of mediation practice involves connectedness and trust between amediator and the parties – be alert to how best to develop this with virtualtechnology, including sharing in an open manner with the parties if you areexperiencing difficulties with the technology or are testing ways of making theprocess most effective.

Conclusion
We at CEDR hope that you found this guide helpful. If you have any questions please contact
CEDR by email at adr@cedr.com.

Guide to Online Mediation