What tips can you share for remote mediations?
Remote mediations have become increasingly popular as a way of settling a dispute before it goes to court. There are a number of ways in which you can mediate remotely, but the most common platform is Zoom, due to its easy-to-use nature and the ability to have ‘break-out rooms’. We have answered some FAQs and set out a quick guide to remote mediations below.
What is remote mediation?
- Mediation is a form of assisted negotiation, in which a neutral 3rd party mediator seeks to help the parties resolve their dispute. The process on the day is managed by the mediator and adopts certain key ground-rules. These are that discussions are private and cannot be referred to in court; and the process is entirely voluntary and non-binding, if and until a settlement is finalised. In the current pandemic mediations are now usually conducted remotely by video conference, instead of an in-person meeting.
- The structure of the mediation will depend on the matters that are in dispute. Before the mediation the parties will exchange their views in position papers and prepare a bundle of the key documents.
- Generally the parties will start the mediation in the same ‘room’ as the mediator, where they will be invited to set out their positions. The mediator will then put the parties into ‘break-out rooms’. These rooms serve as your own private ‘room’ which the mediator will join. You will therefore be able to have private discussions with the mediator without the other side being able to hear those discussions. The mediator will go between the ‘break-out rooms’ to discuss a party’s position further in order to attempt to reach a settlement.
- If an agreement is reached, at the end of the mediation the Settlement Agreement will be drafted. The Settlement Agreement works as an enforceable contract. The Settlement Agreement will outline the details of what has been agreed and the intentions of the parties, such as any actions required, payments to be made and appropriate timescales. Each party will sign the Settlement Agreement, which can be done electronically.
- It is not always possible to reach a resolution/agreement by mediation, but the mediator serves as an impartial third party in order to aid the process. If no agreement has been reached, the mediation may still prove useful as it will give you a better understanding of the other side’s position.
What should I do before the mediation to prepare?
- Ensure that you are in an area with minimal distractions. Mediation is a confidential process, so make sure that you are in a private location.
- Ensure that your microphone and camera work and that you have access to the online platform that will be used. We send our clients a link to the website in advance so that this can be tested out.
- Consider any agreed dress code and dress appropriately.
- Have a copy of the mediation bundle to hand, whether in hard or soft copy, and be aware of what documents are in there.
Any tips on what to do on the day?
- Remember to make sure that before you have any private conversations with the mediator you are in your break-out room.
- You may contact the mediator whilst being in the break-out room. On Zoom there is an ‘Ask for Help’ button on the screen. The mediator will then be prompted to join your room.
- Ensure that you inform the mediator if you or others enter/leave the room. It is important that the mediator knows who is present.
- Be mindful of body language and facial expressions as these can appear more enhanced on the screen, and they are easier to pick up in a remote mediation.
- Stay calm and focussed at all times. When you have a dispute it is sometimes tricky to maintain a calm manner, but this is always vital in attempting to reach an agreement.
- When engaging with the mediator avoid any external distractions such as text messages and emails, as it may come across that you are not interested in the process. It is important to pay attention so that you do not miss any dialogue which may be key to any agreement that is reached.
- When you are in the break-out room without the mediator make sure that you take breaks and keep refreshed, as virtual mediations can be tiring.
Related FAQs
During the Covid 19 crisis lawyers and the courts have had to adapt with hearings being heard remotely and with more electronic communication. It is clear that going forward, some of these changes will become more permanent.
The Lord Chancellor, Robert Buckland QC MP, has spoken last week regarding changes to the justice system following the COVID-19 pandemic and we know that there is a significant backlog of work that needs to be processed.
Firstly, 10 sites have been identified for ‘Nightingale courts’ which will allow for better social distancing. The authorities have suggested that it is a possibility that courts will need to stay open for a longer time or at weekends, to increase the number of cases that can be heard safely on any given day. This will enable more cases to be heard in a day and therefore a swifter outcome for your case. The standard of video technology will also continue to improve, with plans for new technology being rolled out across all courts form July onwards. The enhanced use of technology may result in matters being heard more efficiently, decreasing the time spent during each hearing.
HMCTS is working to expand access to audio and video technology to support more and new types of hearings. There has been an increase in the use of new and varying equipment over the lock-down period. With the appropriate systems in place, many more hearings could take place on platforms such as the Cloud Video Platform (CVP). Throughout July, the CVP will be more readily available to Country courts. There will be further hardware rolled out to improve the quality of video hearings, and there will be more efficient methods used to organise video lists.
The increased use and training of CVP means that witnesses and advocates may not need to attend court and could attend the hearing remotely. This will give you increased flexibility, enabling you to attend from your office or home. The CVP is efficient and simple to use, with no complex functions; making it user-friendly. This should make litigation more time and cost effective (albeit that there will be the cultural challenge of having less contact with your legal team or the court experience).
Arrangements for end point assessments can be modified or rescheduled. End point assessment organisations should engage with External Quality Assurance Providers to agree arrangements for the end point assessments where face-to-face assessments are being modified. Where rescheduling is required due to Covid-19 issues and there is a specified time limit for the ESA post gateway, a further pause of 12 weeks is allowable. This should be recorded by the training provider in the ILR.
Employers had until 31 July 2020 to make any claims for claim periods up to 30 June 2020. That was the end of the old scheme.
From 1 July 2020, claim periods must start and end within the same calendar month and must be for at least 7 days unless you are claiming for the first few days or the last few days in a month.
You can only claim for a period of fewer than 7 days if the period you are claiming for includes either the first or last day of the calendar month, and you have already claimed for the period ending immediately before it.
For example, if an employee is furloughed for 7 days spanning a month. You can claim the last 3 in one month, and 4 from the next.
The crucial point is that you cannot make claims that cross calendar months.
The first time that you could make a claim for days in July 2020 was 1 July 2020. You could not claim for periods in July 2020 before this point.
On 6 April 2020 the Government published further guidance to clarify the position with apprentices during the Covid-19 outbreak. The full guidance is available from here https://www.gov.uk/government/publications/coronavirus-covid-19-apprenticeship-programme-response/coronavirus-covid-19-guidance-for-apprentices-employers-training-providers-end-point-assessment-organisations-and-external-quality-assurance-pro
The guidance includes details of the measures implemented by the Education and Skills Funding Agency (ESFA) in order to provide flexibility in delivering apprenticeships in current circumstances. This includes breaks in learnings, delayed end point assessments and alternative arrangements for end point assessments. These measures apply immediately and until further notice.
There are a number of FAQs within the Government guidance which deal with common queries. The guidance contains some technical provisions and we recommend that you take advice if you are furloughing or making apprentices redundant. If you have any additional queries on the practicalities of implementing the ESFA measures please get in touch.
Further guidance changes to apprenticeships due to coronavirus can be found here.
Yes, however holiday pay during furlough must remain at the normal rate of pay and not the reduced furloughed rate. You can still claim for this period under the scheme but you will be responsible for any amounts beyond the maximum you can claim. Employers have flexibility to restrict when leave can be taken both during and after period of furlough in the normal way.
If an employee usually works bank holidays then the employer can agree that this is included in the grant payment. If the employee usually takes the bank holiday as leave then you would either have to top up their usual holiday pay, or give the employee a day of holiday in lieu.