Keep calm and mediate… virtually

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Is lockdown constricting your commercial contracts and cashflow? Susan Howe, head of dispute resolution, explains how digital mediation can help.

There has been a lot of talk of contracts recently. That’s usually a good thing for commercial lawyers, but these are unusual times.

Nobody expected COVID-19 or the impact it has had on business. It is a force of nature that is currently, and painfully, beyond humanity’s control.

You might well have suppliers who aren’t delivering or customers who aren’t paying.

Terminating contracts under force majeure, material adverse change, supervening illegality and frustration might be more prevalent than ever before, and businesses everywhere might be considering litigation because of this.

Thinking of going to court?

As litigators, my dispute resolution team would be very happy to charge into battle on your company’s behalf. But we are also businesspeople, and what we are really interested in is helping businesses achieve the best possible outcome to their disputes.

That might involve costly litigation, but more often than not, some means of alternative dispute resolution will achieve better commercial results. Especially during economically challenging times such as these.

Could litigation go viral?

The former Supreme Court president Lord Neuberger warned recently that rushing into litigation could merely add to a company’s uncertainty and risk following the coronavirus outbreak.

“The legal world has a duty to the rest of the world to prepare itself,” Lord Neuberger said on the BBC Today programme as he voiced concerns about a deluge of COVID-19 inspired litigation developing.

“Parties should consider mediation and conciliation should be encouraged at an early stage of legal proceedings,” he concluded.

Sue me for what?

Reaching a commercial compromise is usually best for business. After all, there is no point in ending up in court if the potential recovery doesn’t stack up against the costs and risks.

Are you really going to be better off and be able to recover the compensation you feel you are owed from a business that has just been through a drawn out and costly legal battle?

A good litigator will put together a strategy for getting you a solution in the most cost effective way, and mediation can help.

Mediation is a process where a neutral third party facilitates negotiations to help parties involved in a dispute find a consensual outcome.

It is a far cheaper alternative to going to court, and, handled properly, it should carry fewer risks and have a greater chance of success. The only issue at present, is that we are not supposed to be physically meeting up with each other.

Hello virtual mediation

Conducting negotiations online, through video conferencing tools like Zoom, Microsoft Teams or Skype for Business, is something my team is now involved in daily.

There is every reason to believe that facilitating mediation virtually will actually enhance its prospects of success. The physical distance that a digital conference brings can help take the heat out of a dispute and make reaching an agreement easier.

There are also various useful tools that digital mediation offers, such as the ability to share documents on screen, break out into separate private virtual rooms and mute your microphone for privacy purposes.

It’s potentially quicker too, with no travel constraints to hold people back, and at times like these, it could be a crucial tool for reaching the commercial outcome you want.

Top virtual mediation tips

  1. Be prepared – as always, make sure you have all the documents you need and ensure the other party knows to arrive (virtually) with all their documentation
  2. Practice – video dry runs can be arranged at short notice with no travel issues to worry about, so you can practice with your lawyer in advance.
  3. Get your tech right – a good internet connection is a must. Delays in communication or loss of visuals could hamper the advantages that face-to-face negotiation via video conferencing presents.

Regardless of how long it takes us all to recover from the impact of coronavirus, we’re highly unlikely to return to ‘business as usual’. A new ‘usual’ is likely to prevail, for better we’re sure, and sustainable technology is going to be a major player.

For more information or to discuss any issues facing your business please contact Susan Howe on 0191 211 7777, email [email protected] or call our free COVID-19 Business Helpdesk