In the latest of our alternative dispute resolution series for Construction Law, we consider the use of technology in mediations and recent advice for mediators on the topic published by the Centre for Effective Dispute Resolution (CEDR).
The courts and court users maximise efficiency in litigation and keep costs proportionate by using new technology such as time capture software, video conferencing and e-disclosure software. And yet, we don’t see the same level of "new tech" used in mediations.
Our team’s consensus is that mediators rarely use anything more advanced than email and telephone. This more traditional approach is no surprise: technology in mediation remains voluntary. Mediators must judge what is suitable in each case and most are acutely familiar with technology’s pitfalls. For example, using unfamiliar technology or web-based email accounts could expose the mediator and parties to damaging and professionally embarrassing disclosure of confidential documents.
Mediators must also balance the benefits of using technology against the loss of the human touch: indiscriminate use could undermine mediation’s benefits. A mediation brings people together to explore and better understand the other’s position and to find compromise. This very human side of the process can be difficult to achieve without being physically in front of the person, able to identify and respond to human emotion. Such signals can be missed over the telephone or even in video conference. A mediator must therefore assess whether technology will engender the best outcome.
Parties in a high-value, complex dispute could move closer to a compromise by focusing objectively on a key technical issue in a morning’s telephone mediation (a bit like having a preliminary issue heard in the TCC). Conversely, settling a disagreement on a simpler issue – like a boundary dispute – might hinge on a personal apology with full eye contact. Using technology in this case might bring a financial settlement but miss the chance to resolve the personal grudge.
Recognising these issues, CEDR has published some useful, practical advice for mediators on working with technology. In summary, when conducting mediations online or by telephone:
- the fundamental principles of mediation remain the same, including the mediator’s independence and neutrality, party confidentiality and the need for pre-mediation, verbal discussions;
- security is crucial: systems must be secure, capable of handling large files and maintaining confidentiality – even where one party controls the virtual platform;
- ground rules should be set at the outset to protect the confidentiality of the process and documents;
- the mediator should be comfortable using the technology and check the parties know how to access/use it. Backup options must be available and quickly implemented (to save time) if the agreed technology fails. The mediator should also specify a process for the settlement agreement to be signed;
- technology such as Skype can stultify discussions and undermine rapport. The mediator should manage the process to avoid disengagement, particularly during caucus sessions when parties are left alone;
- the mediator should state clearly when the mediation begins and has ended and distinguish between confidential (and still part of the mediation) or without prejudice communications and those that explore/arrange a new mediation process.
New technology simply provides alternative tools to help achieve compromise. It should be implemented only when appropriate and not automatically: maintain the human touch.
This article was first published on 1 July 2019 by Construction Law.