Don’t Stand So Close To Me (In Mediation): How to Conclude a Probate Case In Lockdown

There is a chance, sadly, that another lockdown is coming. You may be reading this during our latest lockdown.

Lots of people are concerned that their probate case will have to wait until the world is post-covid. Fortunately, the chances are it will not.

Many of my lawyer colleagues deal with non-contentious work. A larger number deal exclusively with litigation, but have never conducted a virtual mediation. A few (a number which is growing) are becoming true converts to the advantages of mediating remotely. I am in the latter category.

Plato wrote that our need will become our creator. In modern day parlance, this is more commonly worded as “necessity is the mother of creation”.

And need has spawned the digital mediation.

I have written elsewhere ( https://becket-chambers.co.uk/2020/12/01/the-new-normal-how-are-court-hearings-conducted-remotely/ ) about remote hearings. This is the other side of the coin.

The purpose of mediation is, with the assistance of a qualified mediator, to reach agreement outside of the court arena. The advantages are obvious: making your own decisions, taking the power out of the hands of the Judge, confidentiality, significantly reduced costs, speed, convenience.

It is the last point, convenience, that lends itself to the virtual mediation.

Traditionally, face to face mediation would go a little something like this: both sides and their lawyers (or several sides with their lawyers if it is a multi-party case) would go to a particular location where they would meet their mediator. Probably the most famous venue is the International Centre for Dispute Resolution in London. Traditionally, each party would have a room of their own, and the mediator would have a room of his or her own. Often a representative from a firm of solicitors would attend, as well as counsel. The costs of everybody’s travel, and sustenance (lunch) would be worked into the overall bill. This bill would be divided between the parties. Sometimes one or more parties would travel from a different jurisdiction to attend.

When the costs of travel, accommodation, representation, and the mediator are all included, it can be seen that although usually significantly cheaper than actually attending court for protracted litigation, mediation has significant costs of its own.

Then we compare this to a virtual mediation. In one recent mediation that I was involved in, parties attended from America, Scotland, Holland, England and the United Arab Emirates. The mediator attended from his home office, as did I. My instructing solicitor was at her office. My opposing barrister was in chambers. Her instructing solicitor was at home. Every party to the mediation attended from their home address. No travel, no accommodation, and all the trappings of home comforts available. The only cost in addition to those unavoidable costs (mediator and representation) was for a Zoom subscription which was borne by the mediator. In the current electronic climate of law, most practitioners have a form of subscription to one electronic platform or another. I myself have several.

By the very nature of a mediation, some things are said which the other side, or sides, do not like. I have attended a number of mediations where one party or another has taken umbrage with something said, and threatened to leave the discussions. On some occasions, a party has actually walked out of the building. One of the major advantages to an electronic mediation is that, if things become a little heated, a mediator or barrister can suggest that everybody takes 15 minutes and then regroup. There is a lot to be said for your client making herself a cup of coffee in her own kitchen. It can be tremendously helpful for your client to be able to walk his dog while considering an offer that has just been put to him. These are examples of things that can happen during an electronic mediation.

Those who are not in favour of electronic mediation often quote communication difficulties. This is not a view I share. There is no reason why, with the technology at our fingertips, I cannot have a six-way conversation by phone or by video. All one needs is reasonable phone reception and/or a half decent internet connection. Most of us enjoy these facilities.

To continue the example of a mediation by Zoom, a mediator will set up a number of rooms, one for each party. In a traditional two-sided dispute, this will mean room 1 for the mediator, room 2 for the claimant, and room 3 for the defendant. Assuming I am for the claimant, the only people who can access the claimant’s digital room are the claimants and their representatives. The mediator will flit between the two parties’ rooms as per the demands of the mediation throughout the day. At no point – unless otherwise agreed – will the claimants and the defendants be in the same digital room. This can avoid a lot of the awkwardness that sometimes happens at a mediation centre.

I recall one occasion at the International Dispute Resolution Centre when I struck up a small talk conversation about the weather with the person sharing my lift. It was not until later in the day we both realised that we were on opposing sides of the same mediation. A very heated mediation.

Assuming that those who are party to the mediation are finding the day tiring, as is most often the case, no-one will want to travel too far from the physical location for lunch. It is very common to see at the nearest coffee house someone from the other side of your case. These problems do not exist within a virtual mediation.

Many barristers, and certainly those of us at Becket Chambers, have access to extensive online legal resources. Rather than going back and forth between rooms with various versions of a paper document, it is very easy to securely transfer the first, second, and so on draft of an agreement. Sustainable, efficient, fast. This in addition to doing away with the requirement for securely destroying all drafts of any previously attempted agreements, of which there may be dozens.

On the whole electronic mediation is becoming much more common and much slicker. The legal profession has always been client-focused. It should not ever have been, and hopefully is not, about what is convenient for the lawyer. It is about what is convenient for the client and what suits their best interests. Having asked countless clients over the last several years what their views are in comparing in-person mediation to digital mediation, the unanimous reply (whether or not their mediation has been successful) has been that electronic is preferred. The convenience of being at home or a place of work, taking into account family and childcare responsibilities, whilst also doing away with the necessity of what can be lengthy and expensive travel time to put everybody in the same location, far outweighs, so I am told, any perceived advantages to in-person mediation.

The available counsel list is expanded, the list of potential mediators becomes much longer. People are far more willing to work early in the morning, late at night, or even weekends if their work is not topped and tailed with travel. This means that the available slots to mediate are also increased.

It seems that virtual mediation is here to stay. I for one hope it stays for a very long time.

For any assistance on mediation in any of our practice areas, please contact clerks at clerks@becket-chambers.co.uk for assistance.