by Christine Kipsang – Certified Professional Court Accredited Mediator, Mombasa Court Annexed mediators zoom meeting on 3/5/2020
Online mediation is a suitable method to resolve a dispute for certain types of conflicts and parties using electronically stored information or e-discovery with the services of e-neutral called e-mediator can facilitate the resolution of the e-discovery dispute(s).Mediators may feel unsure about online mediation, however the more you use technology the more it becomes familiar with you as the user. Parties may have hesitation however as mediator you take the role of sensitizing the parties since most of the online platforms e.g. Zoom Microsoft Teams Skype go-meet google-meet are user friendly.
Mediation is often used to adjudicate disputes and it is now institutionalized in our laws and constitution of Kenya 2010(see Article159(1). We have gazetted Mediation Rules 2015 and Practice directions as well as Mediation Manual Mediation is a negotiation between two or more parties facilitated by an agreed-upon third party. Mediation training and refresher courses are now being online. For professional mediators we encourage accreditation by the Judiciary in-order to have bigger pool of mediators in Mombasa and in the country. Many disputes are now requiring mediators’ intervention and those planning to undertake the Mediation course the right time is now to join us.
We know that skilled third-party mediators can lower the emotional temperature in a negotiation, foster more effective communication, help uncover less obvious interests, offer face-saving possibilities for movement, and suggest solutions that the parties might have overlooked. Mediator have immense power and are powerful peace makers.
Now that Courts are embracing e filing and video conferencing to conduct litigation as mediators we need to adopt Online mediation process as we continue to sparingly use the traditional mediation method of face to face interactions.
As Court Annexed mediators we have been receiving instructions through email for all Court annexed mediation files and now it is time we upscaled this during this Covid -19 crisis we are facing as human beings all over the earth. Online mediation is effective so let’s adopt it taking caution on cyber security for ourselves and parties.
Essentials of Online Mediation
Emails talks: effective, slow, you miss on body language ,facial expressions and other in person signals, insulting/sending hostile messages or abandon process when frustrated. Get buy-ins from parties and advocates involved for virtual sessions to avoid non-compliance.
Telephone: quick though prone to mis-understanding, lack of rapport and warmth of face to face talks. Have working telephone, charge well and load it with adequate airtime.
Video conferencing –see each party so then the room lights quiet environment and no distraction, stable internet supply connection. Parties do the same. Agree on videos on strategy to avoid photos or names only. The natural organic flow of information is essential. Upgrade apps and invest in good Anti virus security.
Real time chats/conversations –invest in airtime credit and data bundles and agree on timelines.
Exchange documents via emails by parties – the mediator guides the process on when to share them so that the parties do not request to share what was not agreed from the Preliminary meeting stage.
Use direct problem solving approach and carefully craft responses and strategy to deal with statements of dominant and reserved parties. Timing and response is key. Get familiar with Technical support of the app.
Advantages of Online Mediation
Geographical: There are no geographical restraints. The only requirement to participate is an internet connection.
Time: There are significant time savings can be made, namely through the reduction in missed or rescheduled meetings and travel between meetings. Which can be considerable.
Costs: The removal of overheads such as meeting locations mean there is likely to be yet more cost savings, which is ideal for low value cases. No travel costs. Parking spaces and renting meeting room.
Convenience: The options for dates and times of meetings open up with online mediation. A lot of posturing will happen and parties will prevails.
Viability: As with all mediation, no dispute is too small but with further reduced costs, it seems a viable option for any dispute.
Stress: Acrimonious disputes are not exacerbated by face to face meetings. This is particularly poignant in marital and family disputes.
Inclusion: Those that are severely disabled or have extreme poor health can still be active participants in online mediation.
Flexibility: For all the reasons stated above, no one can argue the flexibility afforded to all parties of online mediation.
Disadvantages of Online Mediation
Concerns of cyber security. The Meeting ID and Password if shared out then unauthorized persons can join and disrupt the mediation process leading to adjournments.
Non- Compliance by parties due to technical support hitches leading to rescheduling.
Parties suffer inconveniences by being in different time-zones with Mediator.
Some on-line technical applications are limited e.g. having break out rooms options for caucus process and thus limit the parties options to hold group discussions privately with the mediator.
Online Mediator Toolkit
Equip yourself with analytical skills and establish a rapport with parties in-order to be effective. Communication Skills. Read widely. Understand human behavior. Invest in good internet supply. Take refresher courses online. Mentor young colleagues . Give pro-bono mediation services.
Gain parties trust and confidence .Truly understand the parties interests then parties will be willing to settle. Then reframe the issues and float creative solutions. Be familiar with technology &its use.
Work subtly so that parties leave feeling they have reached accord largely on their own -a strategy meant to deepen their commitment to honor the agreement.
Embrace the breakdowns, break throughs, windows of opportunities lost or found and remember you are in control and in charge of the mediation process as a mediator.
Sensitization and creating awareness of online mediation to the court users and the society at large.
Court annexed mediation committee to supply parties contacts –telephone emails that actually work. Mediators to maintain working email addresses and mobile telephone numbers for effective communication. Provide Standard Checklist and directions for online mediation process.
Online mediation requires detailed preparation of the parties and the mediator before any session is commenced. It is critical to countercheck the documentation is right, the timing is convenient and all parties have adequate equipment and support to go through online mediation. As mediator it is essential you avail yourself to answer all preliminaries and take cognizance of the 60 days required to start and complete a mediation file if given by MAC or the timelines the parties may agree to for any other mediation matter.
When all is set then you can introduce yourself as mediator to all the parties.
Make all parties feel comfortable as much as possible bearing in mind the choice of language the parties prefer.
Explain role of mediator as neutral party to all the parties and the critical role of parties and their advocates.
Goal is fair and just results /settlement by the parties involved and use of electronic signatures and emails.
Get pre-mediation documents from the parties and explain how further exchanges can take place& timelines.
Give general statement of what is the issue involved.
Outline the process of mediation. Discuss the ground rules/protocol to be used or followed. Then follow the five steps of traditional mediation. Arrive at a settlement& execute electronically to parties and court as the case maybe.