Eamon Harrington: The rise in mediation and remote mediations during Covid-19 restrictions
Eamon Harrington, dispute resolution partner at Comyn Kelleher Tobin, looks at how Covid-19 and Lockdown 3.0 is having an impact on the court system and on mediations to resolve disputes.
The President of the High Court earlier highlighted the obligation of all stakeholders to ensure that the administration of justice is not brought to a standstill because of Covid-19.
Lockdowns have led to a reduction in cases being heard and parties facing delays. However, following the initial shock of the first lockdown, the Courts (with strong judicial leadership and the widening installation of technology) have risen to the challenge. The Courts continue to sit throughout Level 5, with priority given to urgent cases which continue to be heard. Some routine cases are postponed until the restrictions ease, with other cases being heard remotely or part-remotely. The Courts Service is making great strides in improving the technological infrastructure and these improvements will lead to great rewards in the long-term.
The appetite for mediation in Ireland has not been affected by the lockdowns but, instead, has given rise to a different way of resolving disputes by use of remote mediation. Video platforms are the way most remote mediations now proceed, but they are not the only means. In our experience, telephone calls have also been very effective. Also, as lockdowns relax, remote meetings can be supplemented by face-to-face sessions if this helps to overcome any obstacles.
Mediation is an alternative way of resolving disputes, which can save time, money and relationships. It is a flexible informal process which can allow the parties to reach agreement in a shorter time, having control over the outcome, thereby avoiding some or all of the risk and cost associated with court action.
Why is there still an appetite?
In the first two weeks following the first lockdown, a number of pending mediations were initially deferred. However, since then, there has been steady growth in matters again being referred to mediation, for a number of reasons. The pandemic affected normal court business, but disputes needed to be resolved and cases need to be brought to conclusion. Most people involved in dispute resolution recognised the need to roll up their sleeves and to get on with it, rather than downing tools until normal court hearings resumed.
There has been very clear direction from the President of the High Court that parties should engage in either formal or informal Alternative Dispute Resolution (ADR) to attempt to resolve or narrow disputes between the parties before coming before the courts during the pandemic. Other decision making bodies such as Workplace Relations Commission and Legal Cost Adjudicators have, from time to time, been forced to pause work in line with national restrictions, also leading to an uptake in mediations to resolve such disputes.
There has also been a growth in new disputes which were triggered by the Pandemic – these range widely from employment disputes such as unfair selection for redundancy, landlord and tenant disputes about withholding of rent, commercial disputes relating to matters such as force majeure, as well as partnership disputes as income drops and tensions grow.
Are there advantages to remote mediation?
The obvious immediate advantages include no venue costs and more flexible timing. There are also time and cost savings because there is no need to travel and it is possible to have clients in different cities or even countries. Everybody does not need to be in the same venue at the same time, and remote mediation allows people to make good use of dead time during the day of the mediation. As a result of the reduced number of business meetings and in-person Court sittings, there has been increased availability of key players to participate in the mediation process.
Disadvantages of Remote Mediations?
It is sometimes difficult to resolve a dispute without face-to-face meetings or even being able to look someone in the eye. Sometimes, an aggrieved party needs to be heard and it is often cathartic to give a “victim impact” statement to the mediator. Even with the best technology, nuances can be missed and through Zoom it can sometimes be hard to read people and body language. In a number of in-person disputes which I’ve mediated, participants have worn masks which makes it even harder to read reactions.
With proper thinking and preparation, the perceived disadvantages of remote mediation can be addressed and can be converted into opportunities.
Remote mediation is working well. To date, our experience is that the success rate in resolving disputes is no different to face-to-face mediations. It has been embraced by those who have taken the plunge.
Also, as with almost every mediation, even where a dispute does not resolve at mediation, the exercise is worthwhile, whether by narrowing the issues between the parties or leading to the dispute resolving at a later date following a period of reflection or further inquiry.
We know that the pandemic will end, even though we cannot yet say precisely when, but it is inevitable that the learned advantages of remote processes will stay with us. In likelihood, post pandemic, future mediations will regularly adopt a hybrid approach, as in many situations this will work well for the parties.