Remote mediation – the new normal?


06 July 2020

In a year when everyone’s lives have changed beyond recognition, the legal sector has had to adapt accordingly. However, disputes, and in particular disputes regarding wills and trusts, have carried on regardless.

The courts encourage all parties to consider alternative dispute resolution at an early stage with mediation being the most popular method. With cases concerning will disputes, often family members are in conflict, which only increases the attractiveness of mediation where the parties can hopefully resolve the dispute and move on in a private setting.

According to the CEDR mediation audit (2018), 89% of cases settle through mediation; 74% on the day of mediation and 15% shortly after. Prior to the current lockdown, mediation would usually involve all parties, and the mediator, attending the same venue, which would include significant travel time and cost. Mediation is a long day, historically starting at 10am and often carrying on into the evening. Parties are understandably exhausted by the end of the process and the emotional strain felt cannot be underestimated. 

The general consensus when lockdown was announced was that remote mediation was a necessary evil. Lawyers had concerns regarding not only the technology, but whether clients would be able to gain as much out of the mediation if they weren’t in the same room as their lawyers. However, despite the overall scepticism, our experience of remote mediation is overwhelmingly positive. 

The videoconferencing facilities available ensure that parties have individual breakout rooms and the mediator can access the virtual room in the normal way. Remote mediation means that the lawyers do not charge travel and accommodation costs. Additionally clients can remain in their own, familiar surroundings which can ease the pressure in a highly charged environment. 

Of course no system is perfect, and when tensions are running high it may be very tempting for parties to click the ‘End’ button. However, this is where the lawyers and the mediator have to use their skills to manage the situation and find a way forward. 

As restrictions are eased and we look to the new normal, we anticipate that remote mediations will continue. Large strides in legal practices generally evolve over time, but we have been forced as a sector to adapt and there is no looking back! 

If you would like to discuss the mediation process further please get in contact with Jenny Howe, Anna Kelly or another member of Birketts' Contentious Trust and Probate Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2020.