Features

Mediating From the Safety of Your Kitchen: Are We Missing Something?

Published: April 6, 2022

Colin Hulme Burness Paull LLP Glasgow, United Kingdom

We’re living through a time of profound change. We’ve perhaps become more aware of evolving developments around us and of the importance of being an active player for positive change in society, in our communities, and in our own lives. In recognition of this, and in alignment with a pillar of our 2022‒2025 Strategic Plan to Build a Better Society Through Brands, we’ve created “Stories of Change,” a feature article series that brings perspective to change in the global IP community. This is the first article in this series.

Conducting a mediation using a video conferencing platform is not novel—it has been available for many years as a cost-effective method of resolving disputes, particularly where the parties are geographically distant. However, recent restrictions on our ability to travel and meet have led many practitioners to adopt the use of online mediation.

In the author’s experience, in mediation, the norm is for all concerned to congregate in one place, typically a law firm office or hotel. Each party camps out in their own room and, throughout a long day, which is orchestrated by a mediator, representatives of each party will meet, discuss, argue, eat, drink, and (hopefully) agree together. If successful, a settlement agreement will be signed at the end of the day.

By contrast, with online mediation, the individuals can be in their own homes and join through an online video conferencing platform such as Microsoft Teams or Zoom. Again, the process is orchestrated by the mediator, who has control of who is in which breakout room. Agreed engagements between representatives can be achieved by bringing representatives into joint meeting rooms. It reduces the cost of travel and accommodation to zero and can be done from the comfort of your own home. What’s not to like?

Are We Missing Something?

Online mediation is certainly cheaper and efficient, but it lacks so many of the intangible benefits of in-person mediation. The human and emotional elements of engagement with the “other side” are different if you do not need to be in the same place.

The author has worked on mediations in which the principals have not actually met, but felt it was crucial that they were in the same building. Each had shown a commitment to seek a resolution by traveling to that place for the purpose of mediating.

 

Online mediation is certainly cheaper and efficient, but it lacks so many of the intangible benefits of in-person mediation.

In their excellent article, “Mediation and Emotions: Perception and Regulation,” Charlie Irvine and Laurel Farrington, both of the University of Strathclyde, make a compelling case that an understanding of human emotions is key to the mediation process and achieving success through it. They state in their article that “if parties are emotionally aroused by anger, fear or a sense of injustice[,] it will influence their perceptions and thus their judgments about what is true or false, right or wrong.”

One mediator known to the author typically gets all those involved in the mediation into the same room at the start of the day for a very informal coffee and breakfast roll. This is played down as a low-key start to the day, but this breakfast meeting is very impactful. Representatives will arrive for the day with varying levels of anxiety and this effectively “breaks the ice” and gets that first meeting out of the way, so parties can relax and move forward.

Of course, “breaking bread together” has a rich meaning and is a powerful gesture signifying peace and friendship. And for this reason, the breakfast meeting is certainly part of a deliberate plan. This step in the process is entirely lost in online mediation.

We do not have that cathartic process of heightened emotions followed by a degree of relief and appreciation that your opponent is an actual human being! Through the mediation process, participants who have strong emotions about the dispute or the other party have the opportunity to vent these emotions and allow others to better understand that. There is the risk that mediating from your kitchen allows participants to evade so much of that part of the process. Anyone experienced in mediation will speak to the importance of committing to the process. That commitment is essential to ensure that the others involved do not have conflicting priorities (typically an early evening flight home), which could become the dominant feature of the mediation, dictating the timetable. It suggests a limit to their commitment to the process, which can be incredibly undermining to the mediation.

If the parties and their representatives have all traveled to a place for a common purpose, it is hoped they will work together to achieve that purpose. Boredom, frustration, and attrition do play an important part in the process. The fun of sending a lawyer off to argue meaningless points tends to ebb away in the early hours of the morning, and fatigue can offer a greater focus on what you truly need to achieve from a deal.

If you are mediating from the comfort of your own home, the level of commitment is greatly diminished. Parties and their representatives are able to juggle other work and family priorities, and perhaps they are able to just dip into the mediation process when called upon. Online mediations do not run into the early hours of the next day, and those involved are rather less fixated on achieving the common purpose of a deal.

 

If you are mediating from the comfort of your own home, the level of commitment is greatly diminished.

In the interests of balance, the author acknowledges some views to the contrary. One colleague who has done a great deal of online mediating during the pandemic speaks of the intensity of “one-to-one” sessions with the mediator by video conferencing. He finds the process very authentic and the emotional engagement of being “eye-balled” by the mediator’s face filling his computer screen to have been powerful for him.

A Post-Pandemic Future

It is anticipated that online mediation will have a post-pandemic future despite its drawbacks. Mediation (in person or online) is an incredibly effective tool for resolving disputes. The author estimates to have been involved in more than 20 mediations and every one of them has been settled on the day, or the mediation process has been the catalyst for a subsequent resolution. Statistics on the success rates of mediation vary, but approximately 80‒90 percent of disputes settle on the day or within a few months of it.

The author remains optimistic that there will be ways of balancing the benefits of in-person mediation with the costs and efficiencies of online mediation. The idea of being able to resolve international intellectual property (IP) disputes with participants in far-flung locations is a worthy goal of online mediation. And perhaps with greater experience, mediators and representatives will become more accustomed to mediating in a digital environment and adapt. At a basic level, they will become more adept at using the meeting platform and breakout facilities. In my experience, that still needs a bit of work! Over time, I expect they will develop techniques for ensuring intellectual and emotional engagement from all participants even if they are geographically distant. We as practitioners owe it to our clients to do so.

There is no doubt that we are all much more used to communicating using video platforms than ever before. Even if the parties are physically remote from each other, asking each to participate as a team from an office or hotel room (rather than individually in their own kitchens) would show commitment.

Who knows, the next step may be mediating using virtual reality technology.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

© 2022 International Trademark Association

Topics