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The future of international mediation for lawyers

Guest post by Ling Ong, president of the London branch of the Forum of Insurance Lawyers and a partner at Weightmans

Ong: No return to the old ways

The pandemic has seen a significant increase in the number of international mediations that have taken place online. As more countries sign-up to the Singapore Convention, this trend is likely to increase.

Lawyers in other jurisdictions are also having more exposure to this process and are likely to consider it, so what should lawyers in this jurisdiction do?

Clients now recognise that trials are costly and the outcome is never certain. Many build mediation into their contracts as a way of resolving disputes at an early stage. Global travel for mediations at which the parties are physically present may conflict with the client’s policy on climate change issues.

Virtual mediations also allow for considerable savings in time. When not required, a party sat in their home environment has a greater prospect of using that time for other purposes. They also allow for parties to join the mediation only when required.

More than ever, thorough preparation by the lawyer is important. This starts with ensuring that the mediator to be appointed is one who will conduct the mediation in a way that is satisfactory to the client. This may include the mediator being more than just good at the job but also having prior experience of the issues involved.

The next step is to understand fully not only the strengths and weaknesses of the client’s case but also that of the other party. Any statements made or arguments deployed must be capable of being backed-up if challenged.

It is too late if a failure to be able to do so arises only during the mediation. The lawyer must recognise that at this stage their role is not to win the case but to assist the client to achieve a settlement.

The client must also understand the process and what it involves. Again, this is an attempt to achieve a settlement, not win the case.

It is therefore important to know what are the issues on which the client is prepared to cede ground; on what issues should a line be drawn in the sand; and what do they really want to achieve from the process?

Some of this information may then be passed onto the mediator and may assist them in avoiding early confrontation that could set the mediation back by several hours.

One of the perceived problems with virtual mediations is the loss of the chance to read body language. However, when there is a limited number of parties on screen, body language and tone remain very important.

This is particularly the case when parties may come from different cultures and speak different languages. Lawyers and clients must be seen by the other party to be listening to and respecting their arguments, even if there is disagreement with them.

If a case is particularly complex or involves several parties, with different roles in the dispute, early neutral evaluation may assist to narrow-down the real areas of dispute and/or the parties.

Concerns about the failure of technology are largely misplaced, but as part of the preparation phase, alternative means of communication must be considered, if a party is lost from the process.

The pandemic has forced changes on the way disputes are resolved. Lawyers in insurance disputes should embrace those changes and not expect a return to the old ways.

London FOIL recently hosted an event looking at the future of international mediation with guest speakers Michel Kallipetis QC and Nigel Wright.