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While mediation develops differently in each jurisdiction, the global pandemic has introduced the worldwide practice of online mediation – a change that is here to stay. As a consequence, the importance of pre-mediation meetings has increased, reflecting the flexibility of mediation, a core principle of the service.
Author: David Ravenscroft, Senior Consultant
Flexibility is one of the core principles of mediation, the point being that the process of mediation should be tailored to whatever suits the parties and the dispute in question.
As might be expected, particular formulations become fashionable, and these formulations develop and change from time to time. Mediation is now a world-wide activity and different jurisdictions develop in their own way. For example, in the United States, joint sessions are now used less frequently and sometimes dispensed with altogether. In Hong Kong, however, mediations tend to follow the standard facilitative model more closely.
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Nonetheless, the biggest recent development is a world-wide one and has been the growth of online mediation since the global pandemic. This particular development has retained its popularity even after the end of the pandemic, sometimes even when in-person mediation would be perfectly feasible.
One particularly noticeable implication of this shift to online mediation has been the emphasis placed on separate pre-mediation conferences with each party.
Recently, quite a number of experienced mediators have explained the primary importance they attach to pre-mediation conferences. Amongst them has been John Wagner, the former President of the International Academy of Mediators. He recently gave a talk to the Hong Kong Mediation Council, which is part of the HKIAC and set out advantages that range from the seemingly minor to the clearly important. To illustrate, one particularly important advantage is that it enables an element of trust and easy communication to develop between mediators and the parties.
Pre-mediation conferences also enable mediators to update themselves on matters such as who will be attending, who are the decision-makers, what is the current state of play in the litigation and whether there have been previous settlement negotiations and, if so, where they have got.
Mediators can also use the conferences to take the temperature on less definable matters - what is the likely level of civility between the parties, the flexibility and creativity that each party is likely to show and any suggestions they may have for the design of the mediation process or indeed any likely settlement.
The easy development of mediation is one of its most important functions – to provide a process of dispute resolution that fits whatever dispute is placed before it.
Disclaimer: Whilst every effort has been made to ensure the accuracy of this article it is general in nature and does not constitute legal advice of any kind. You should seek your own personal legal advice before taking legal action. We accept no liability whatsoever for loss arising out of the use or misuse of this article.
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