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It is more than six months since the start of lockdown in Northern Ireland and we have seen significant disruption to our court system. Although we face continued uncertainty and further restrictions likely, we are starting to get a clearer picture as to how litigation and dispute resolution might look in the immediate future, and medium term.
The current state of transition and infrastructure in our court system has meant that there are understandable delays in having cases disposed of. It is clear that the courts are keen to show that they are open for business and working to overcome the myriad of issues caused by managing public health whilst progressing cases. A consequence is a significant increase in the online court hearings and reviews as the system embraces technology.
As business resumes, and we start to see more matters being listed, we are likely to see longer waiting periods and timescales for litigation. Although the court is seeking to embrace the use of technology there are inevitable challenges associated with this and developing a robust and stable long-term solution.
Often a dispute goes beyond the point of repair for the parties, and whether these be partners, shareholders, or two or more companies bound by a contract, intervention is required to achieve a resolution. Whilst litigation can be inevitable, Alternative Dispute resolution (ADR) is increasingly being seen as a viable alternative to mitigate the time and expense incurred with court action.
The expectation which is enshrined in numerous court protocols is for parties to explore ADR before coming to court and even during the court process where appropriate. With the current challenges faced by our court system, parties will need to collaborate if they want an expeditious resolution.
This article explores the particular role which mediation can play in the current climate as a method of ADR.
A successful mediation provides a speedy and more cost effective end to the dispute, with certainty for the parties to move on. Even where the mediation does not achieve a settlement, the parties will know their own case better, know their opponent’s case better, and have narrowed the core issues.
There are a range of venues in Northern Ireland which provide facilities for mediation and some can be undertaken with all social distancing measures being observed. However parties can consider the option of online mediation or even a hybrid of online and “in person” mediation which can facilitate key people getting involved without the need for unnecessary travel or breach of any localised restrictions.
The additional setup for an online mediation is quite straight forward with the parties signing onto a particular platform and agreeing how the mediation will run. The benefit of the process is that it can be flexible to the needs of the parties and can be agreed in advance.
To ensure effective communications between parties and their representatives, separate video conferencing facilities can be used to discuss progress and take instructions. Parties can also use text, Skype, Whatsapp groups, or any other messenger service allowing a group platform.
The mediator can access the platform being used and go between the online breakout rooms for the various parties or bring people from each side of the dispute together in a virtual breakout room to discuss particular points directly.
The online platforms should of course have the appropriate built in security measures in place. The standard of platform is key as some do not have the required encryptions and suffer from security vulnerabilities.
When a mediation takes place in person, you are able to “read the room”, assess body language and engage an individual’s reactions to developments. You are also able to interact directly with the mediator, and assess their reactions and input. There is the suggestion amongst practitioners that this lack of “in-person” contact renders online mediation less effective.
Another concern is whether parties may be more inclined to abandon the mediation more readily as it progresses. In a traditional mediation the parties have committed to a day to come together in-person, often travelling to get to the venue so they are a “captive” audience. Arguably it would be easier to turn off the laptop when things do not appear to be going as one party might hope.
A skilled mediator will need to adapt their techniques to maintain engagement virtually through a potentially long day and overcome the lack of direct contact which would come about in a traditional mediation.
Participants clearly require a stable internet connection and appropriate knowledge of the technology to ensure that they can stay engaged in the process and the day can run smoothly. For this reason it can be beneficial to conduct a practice session so as to ensure that any teething issues are bottomed out before the “big day”.
Despite these potential drawbacks or concerns, we are faced with the very real prospect that in person gatherings could be disrupted for an uncertain time to come. The advantages of achieving finality to some disputes through online mediation may well trump these concerns. Often the parties have got to a point in their dispute where the relationship has become damaged and potentially volatile. When one looks at the distanced nature of an online mediation, there is an argument that this is the best forum in such circumstances providing less confrontation.
The success of an online mediation will come down to preparation and mind-set. It will not solely be the role of the legal representative to prepare their client; it will primarily sit with the mediator to adapt to this forum and to manage and control the mediation effectively. Communication is a key component of any negotiation and the mediator will have to ensure that the parties are kept regularly updated.
As Charles Darwin said “It is not the strongest of the species that survives, nor the most intelligent that survives. It is the one that is the most adaptable to change.”
The court’s capacity as a result of the pandemic has presented an unprecedented challenge for the legal system and court users. The world of business and disputes goes on and we should be open to the use of remote mediation, in the same way as we have had to adapt to the concept of online court hearings.
If restrictions persist and extend, online mediation may inevitably be one of the only practical and speedy ways to negotiate our disputes. And at the end of the mediation, when you have had a successful outcome, you are in the comfort of your own home with the kettle boiling or the wine chilled.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.
14 October 2020
Insights 13 FEBRUARY 2023