Before the pandemic shut down the world, mediations typically took place face to face. However, the pandemic has made us realize the importance of being able to virtually mediate conflicts. Virtual mediations may not replace physical mediations any time soon but an effectively conducted virtual mediation has many benefits over the traditional mediation.

In a virtual mediation:

• parties save significant time and cost associated with attending face-to -ace mediations e.g., travel and venue expenditures.
• parties can resolve cross-border disputes while sitting at home/in their office in their own city.
• the decision-maker who has the authority to settle the dispute can easily join instead of an assistant making a call to the person with such authority which often delays the entire process. 
• lawyers (if they are involved) of both the parties are less concerned about the other counsel intimidating or upsetting their clients.  
• parties have the option to have additional participants join who might otherwise not have jointed due to time, travel or cost considerations, e.g., interpreters, insurers, experts, assistants etc.;
• parties have the flexibility and convenience of being in their own space which allows them to be themselves and remain calm and refreshed;
• parties experience less stress and anxiety as they do not catch a plane or a train or contend with miserable traffic or find a place to park.
• parties are calmer as they do not have to face the opposite party during a comfort break, something which may be particularly relevant if dealing with a conflict that has gotten out of hand.

Even though a virtual mediation follows the same procedure as a traditional mediation, it does come with its own unique challenges.

• Unpredictable software platforms, unreliable internet connections and the technical malfunctions can be a challenge;
• It could also be challenging to maintain the preservation of confidentiality in a virtual mediation;
• Being able to read the body language of a client is one of the most important parts of a mediation process. If the mediator isn’t familiar or inexperienced with virtual mediation, it may be difficult to gauge credibility.
• For parties, it may be a difficult to empathize with each other and even difficult to stay focused;
• It may take some time for parties to get familiar with a virtual ‘venue’ where they have to ‘enter’ and “leave” a virtual breakout room to join the plenary session, and vice versa, during the course of the mediation;
• Taking breaks is important to stay focused, recollect your thoughts, gain perspective, especially if you trying to reach a resolution on a conflict. In a virtual mediation, parties may take few to no break as they may not step away from their computer to stretch and get some fresh air.

Recognizing these potential pitfalls of virtual mediation early on, will allow parties maximize the advantages of mediation and optimize their potential for resolution.

What is even more important is appointing a mediator who is familiar with the virtual mediation format and is relatively proficient with the relevant technology and virtual arrangements.

Importance of pre-mediation meetings

Pre-mediation meeting is a must. It will iron out many of the housekeeping matters that inevitably.

For virtual mediations, several preliminary meetings are a sine qua non in addition to the preliminary meeting that normally precedes the mediation itself. In the first place, a technical meeting is needed, in which the parties agree to a platform, but it should also be made sure that the internet connections of all participants are good enough for the video conference to run smoothly, and especially to familiarize yourself with the chosen software. It is also advisable to arrange a backup plan, in which the participants can run the audio portion by telephone or via WhatsApp, so that the video conference is less taxing on the internet connection.

Second, it is highly recommended to have a pilot virtual mediation process to ensure everyone understands how the software works, including going in and out of a breakout room, presenting documentation in a caucus and in joint session, and jointly working on a settlement agreement. It is also advisable for the mediator to instruct the lawyers of parties in detail about the technical aspects and to go through the “appearance” on camera with the client before the mediator conducts the trial mediation.

It is also an excellent idea that the persons employed by the client, who will participate in the mediation, also attend the preliminary meetings, not only to master the technological aspects, but also to get to know the mediator a little better.

In this respect it is important that the number of participants in the mediation should be kept to a minimum, and certainly no more than 24. More than 24 would create a second page in Zoom, which means that the people on the second page are not immediately visible to the mediator and any other participant who wants a good overview of all participants. In my opinion, 24 is already too much. Ideally, I would have a lawyer and a client’s representative on both sides, so that a total of 5 screens appear on my laptop, which is a lot bigger than if I had to monitor 24 (or 25 including the mediator) screens.

In practice, such a preliminary meeting does not have to be just a test drive. By doing these tests with one party and then the other, the mediator can already start holding separate sessions (‘caucuses’).

With preparation, training, and education, most of the difficulties associated with virtual mediations can be overcome and the benefits can far outweigh the challenges. As mediators become more versatile while conducting more and more mediations online, the effectiveness of virtual mediations will continue to increase.