Lawyer warns construction companies of the challenges of ‘virtual mediation’ as a result of Covid-19

Organisations that are looking to use mediation as a way to resolve a dispute without the need for costly litigation need to be aware of the impact that the Covid-19 pandemic will have on the process in the coming months, and the potential pitfalls and challenges.

This is according to Ian Timlin, a specialist dispute resolution and commercial litigation lawyer at Conexus Law, who cautions that the new process may not be as effective and is also less secure unless certain measures are put in place.

Ian explains: “From a practical point of view it has been relatively straightforward to bring mediation online with Zoom for example being used as the facility for secure separate breakout rooms for separate parties and for bringing the parties together in a plenary session. The mediator can then speak to each party separately or with the parties together, virtually switching online from room to room.

“However, this does mean that things are not necessarily as secure as in a physical situation. As a result, we are advising that there is an online mediation protocol in the mediation agreement to be signed by the parties which governs the terms of how the virtual mediation progresses and the rules that are to be adhered to. It should cover areas such as not recording the sessions or sharing of the mediation meeting ID other than to participants involved to ensure no one ‘sits in’ unannounced.

“Also each party should agree that if for any technical reason, including error on the mediator’s part in moving parties correctly to the breakout rooms, they can see and/ or hear a private conversation between the mediator and/ or any other party, they must terminate the session at once and call or text the mediator.”

However, Ian goes on to say that the biggest challenge remains the fact that it is much more difficult to establish a genuine rapport across a screen with the mediator and other parties and this is key in mediation to gain a parties’ trust and confidence.

“Before people are willing to settle, they must feel that their interests are truly understood, and only then can a mediator reframe problems and float creative solutions. Eye contact with the other side can be difficult if they are sitting well back from their screens and not in the same room and therefore it is vital that participants show their faces and do not hide behind their name on a black screen or stock photo of themselves. That way each party and the mediator can see how they are reacting to the points being made,” he explains.

Ian also points out that whilst online mediation is new to many organisations, Ebay is a big user and it is estimated that an incredible 50+ million disagreements amongst traders on eBay are resolved every year using online dispute resolution.

“There is no doubt that virtual mediation is here to stay and is certainly appropriate for low value disputes. However, where considerable sums are in dispute or complex issues arise, serious consideration should be given to the traditional form of mediation even in the current circumstances,” concludes Ian.

For more information, Ian has created a guidance sheet, Mediations in the time of Covid, alongside another fact sheet, Renegotiation – An art not a science.

Fact Sheet: Mediations in the time of Covid-19

In our factsheet Renegotiation – An art not a science, we touched upon resolving disputes using the process of mediation.

Mediation is:

  • Voluntary, private and non-binding negotiation until the parties distil any negotiation/ settlement to a new written settlement agreement.
  • It is most often the appointment of a qualified professional third party mediator (from a professional mediation body such as CEDR or Independent Mediators in the UK) who shuttles between the parties, undertaking confidential discussions with the parties, with a view to brokering a negotiation/ settlement between them.

In the past, mediation has usually been undertaken across, at least, three rooms at a neutral venue with the mediator shuttling between the opposing parties’ rooms having confidential decisions with each party to try to narrow the dispute and gap between them, and ultimately try to get them to reach a settlement.

At the start of such a mediation, there was usually a plenary session where the mediator sits at one end of the table and the parties and their lawyers speak to each other across it.

With Covid-19, mediation has now moved online and they are taking place by various platforms using live screen video. In particular, Zoom is being used as the facility for secure separate breakout rooms for separate parties and for bringing the parties together in a plenary session.

So how is it operating virtually? The mediator places each party and its lawyers into its own virtual room, even if representatives from party are at different locations. The mediator can then speak to each party separately or with the parties together. Instead of actual shuttle diplomacy between actual rooms, the mediator does the same virtually by switching online from room to room.

But what are the matters and potential pitfalls that need to considered for a virtual mediation:

Check that there is an online mediation protocol in the mediation agreement to be signed by the parties which governs the terms of how the virtual mediation progresses and the rules to be adhered to. It should contain at least the following:

  • The parties should agree that no recording of the mediation takes place (it’s a confidential process), no photo images are taken and that there is no sharing of the mediation meeting ID other than to participants at it.
  • If for any technical reason, including error on the mediator’s part in moving parties correctly to the breakout rooms, a participant finds itself able to see and/or hear a private conversation between the mediator and/or any other party, the participant should terminate the online mediation session at once and call or text the mediator on the number provided by it.
  • Steps to be taken if technology fails to operate properly or the mediation session does not start on time or is interrupted.

In the case of the cross border mediations, pre-mediation checks should be undertaken to ensure that no national firewalls prevent parties in one jurisdiction from using Zoom or the technology platform to be used for the mediation.

A pre-mediation call from the mediator to all participants from a party and the testing of the technology platform to be used by all representatives of party for the mediation is paramount. A good and secure internet connection and both the parties and the mediator understanding the technology/platform are very important to a successful mediation.

As to the virtual mediation itself, the following points should be borne in mind:

  • A headset with microphone or earphones with microphone is very helpful.
  • Mute microphones and don’t talk over people.
  • A professional background and decent lighting will assist the process. Representatives of a party should show their faces and not hid behind their name on a black screen or stock photo of themselves so that each party and the mediator can see how they are reacting to points being made.
  • An interruption free day is very important for participants. That is more easily achieved in an in-person mediation rather than representatives from a party being in different locations and often at their homes. The use of phones and checking emails on the computer that a party is using to participate in the virtual mediation should try to be avoided.
  • Across a screen, it is going to be more difficult to establish rapport. To gain a parties’ trust and confidence, rapport must be genuine. Before people are willing to settle, they must feel that their interests are truly understood. Only then can a mediator reframe problems and float creative solutions. Relationship building is more difficult online. Eye contact with the other side can be difficult if they are sitting well back from their screens and not in the same room.

Virtual mediation is still relatively new for all clients, litigators and mediators. In our experience of having undertaken virtual or live screen mediations, it’s the best bet in circumstances where parties genuinely cannot all be present at the same premises (even on a socially distanced basis), but it is simply not as effective as a live mediation with all the parties at the same venue, cooped up in their respect rooms for most of a day and with the mediator being able to shuttle between them in the flesh.

Perhaps one of the most well recognised users of online dispute resolution is Ebay. It is estimated that an incredible +50 million disagreements amongst traders on eBay, are resolved every year using online dispute resolution.

Virtual mediation is here to stay and is no doubt appropriate for low value disputes but where considerable sums are in dispute, serious consideration should be given to the traditional form of mediation even in the current circumstances.

For further advice on mediating, please contact Ian Timlin via his contact details below. Ian has been a CEDR accredited mediator since 2000.

Ian Timlin
Main: +44 (0)20 7390 0280
Mobile: +44 (0)77 6742 7332
ian@conexuslaw.com

This factsheet is for general information purposes only and does not constitute legal advice. The law is open to, and may have changed since this was written, and it cannot be relied upon as advice in respect of your particular situation. 05/08/2020

Fact Sheet: Claiming interest and other costs

If you are owed money and are making a claim for it in a letter or email, do not forget to make a claim for interest and other costs that you may be entitled to…

Fact Sheet: Renegotiation – An art not a science

Chances are, that as a result of COVID-19, you are either going to have to seek to renegotiate your agreements with another party or deal with parties wishing to do so with you.

In respect of renegotiation, here are some points to consider…

Contract concerns? Digitalisation World

Conexus Law offers the latest guidance for companies.

“Life and business has got a lot more difficult and complicated since the classification of COVID-19 as a pandemic. As a result, all businesses are or will be looking at their financial and logistical obligations to third parties.”

This is according to Ian Timlin from Conexus Law, the specialist advisory firm that provides legal and commercial advice to clients who work in sectors where the built environment, technology, engineering and people converge.

In the latest free guidance sheet that can be found on the company’s website, he is advising companies that as a first step they should check their written contracts to see if they contain any terms can help clarify things. These may include force majeure, material adverse change clauses and general break clauses.

“Companies may also want to look to see if the counterparty to the contract is going to find it difficult or impossible to perform its own obligations now or in the future (particularly in the short term). That may give them scope to negotiate sensible variations all round,” suggests Ian.

Source: digitalisationworld.com/news/58929/contract-concerns

Fact Sheet: Struggling to meet your contractual obligations? What are the issues and options?

Life and business has got a lot more difficult and complicated since the classification of COVID-19 as a pandemic.

As a result, all businesses have or will be looking at their financial and logistical obligations to third parties.

If you are struggling to meet any of those obligations, please consider this guidance to see if you can implement any of our suggestions.

Conexus Law appoints dispute resolution specialist to support companies during the COVID-19 pandemic

Conexus Law, the specialist advisory firm that provides legal and commercial advice to clients who work in sectors where the built environment, technology, engineering and people converge, has appointed a specialist dispute resolution and commercial litigation lawyer.

Ian Timlin brings with him nearly 30 years’ experience including acting for long standing technology clients in the following sectors: data centres, document management, telephony, car parking and young driver insurance. Career highlights include: leading and completing the successful settlement of complex multi-party multi-insurer construction claims including recovering £21m from a FTSE 100 construction company, architect and their insurers following mediation.

Ian Timlin said: “I have been a CEDR Accredited Mediator since 2000 and feel strongly that discussion and negotiation are often the primary tool in resolving disputes and Court proceedings. This is particularly important during this pandemic where companies, businesses and individuals need to work together to get the best possible outcome and maintain good working relationships for when this is all over.”

Ed Cooke, founder at Conexus Law, said: “Ian’s clients comment that he is straight talking, tough (when necessary), practical, tenacious and ultimately very commercial in getting disputes resolved. He is a great asset to our growing team and will be invaluable in helping our clients both through these unprecedented times and after as we start the process of rebuilding.”

Ian was previously an equity partner at Maxwell Batley on Chancery Lane and at City law firm, Speechly Bircham, and the Group Legal Director for a large offshore property development, investment and construction group based in the Channel Islands.

He is also an accomplished sports lawyer, with particular and significant experience in the world of motorsport, advising in respect of disputes and putting in place a myriad of commercial contracts in that sector.

Fact Sheet: The effect of Coronavirus on contractual obligations

The Covid-19 coronavirus outbreak is already having a significant impact on many individuals and many businesses. Unfortunately, it is becoming clearer that the impact will likely be more significant and longer lasting than we may have imagined at first.

Primarily, businesses should be focussed upon the health and wellbeing of their teams, and what they can do operationally to minimise the spread of the virus. Governments across the world are issuing guidance, and mandating actions that businesses and individuals must take to support this effort.

This is a fast-moving landscape. We are working hard to keep our clients up to date.

This note provides legal analysis alongside some valuable, practical steps that may be taken by parties who find the impact of Covid-19 affects their ability to meet contractual obligations owed to others (upstream), or who find that their trading partners can no longer meet the obligations owed to them (downstream).

In the modern commercial world, businesses are also more reliant on trading partners and long “just in time” supply chains in order to fulfil their contractual obligations. The impact of Covid-19 could significantly upset those finely balanced arrangements. The relationships between parties may be tested in ways they had not previously contemplated.

As trading relationships are now often global, one may have to consider a complex interplay of laws from different jurisdictions, some of which are potentially in conflict. The answers are not simple and are highly fact specific. This note gives some general legal guidance, but it is no substitute for proper legal advice – whether that advice comes from us, or your usual lawyers.

Various governments are introducing emergency legislation to provide support to businesses that may be affected by Covid-19. Some of that legislation may amend the general legal guidance provided in this note.

For countries that are key for our clients, we will endeavour to provide more detailed advice on the latest position.

The effect of Covid-19 on contractual obligations, Datacentre Solutions

Conexus Law, the specialist advisory firm that provides legal and commercial advice to clients who work in sectors where the built environment, technology, engineering and people converge, is launching a range of fact sheets on the legal implications of the Covid-19.

The first one provides legal analysis alongside some valuable, practical steps that may be taken by parties who find the impact of Covid-19 affects their ability to meet contractual obligations owed to others (upstream), or who find that their trading partners can no longer meet the obligations owed to them (downstream).

Ed Cooke, Founder at Conexus Law, said: “In the modern commercial world, businesses are often heavily reliant on trading partners and long “just in time” supply chains in order to fulfil their contractual obligations. The impact of Covid-19 could significantly upset those finely balanced arrangements and the relationships between parties may be tested in ways they had not previously contemplated.

“As trading relationships are now often global, a complex interplay of laws from different jurisdictions may also be in play, some of which are potentially in conflict. For example, English law may govern your contract with your customer, but Chinese law may govern the law of your contract with a critical supplier enabling you to perform your customer contract.”

The Conexus Law fact sheet advises that organisations identify whether there are any express provisions written into the contract which might be relevant to the Covid-19 situation. For example, there is a large section on force majeure and whether it is applicable. Other areas include certain insurances and the importance of following all relevant procedures in the policy related to claims notification and submission of claims.

“The Covid-19 coronavirus outbreak is already having a significant impact on many individuals and businesses and it is becoming clearer that the impact will likely be more significant and longer lasting than we may have imagined at first. We hope these fact sheets provide helpful guidance during these challenging times,” concludes Ed.

Source: datacentre.solutions/news/58777/the-effect-of-covid-19-on-contractual-obligations

Law firm specialises in physical and digital infrastructure, Datacentre Solutions

A law firm that focuses solely on supporting companies at the intersection where the built environment, technology and people converge, has launched today. Conexus Law will work closely with clients in the connected world in both IT, telecommunications, infrastructure and datacentre construction and with engineering businesses delivering major infrastructure projects.

The company has been founded by Ed Cooke, a recognised expert in critical IT infrastructure, engineering, procurement and construction. He has previously been a partner in international law firms DLA Piper and Bird & Bird. Conexus Law is founded on the belief that its people can only deliver the best counsel if they have a strong understanding of the industry challenges and the underlying technology and processes, so every member of the team has specific industry expertise.

It will take a fresh and different approach to legal practice, in many ways mirroring the way its clients operate, using similar language and processes to enable seamless interaction, identifying key risks and creating flexible legal frameworks.

Ed Cooke, Founder at Conexus Law, said: “With growth continually outstripping predictions, the digital sector is facing major challenges around the unprecedented pace of change, lack of resources and an inability to predict what the future technology landscape will look like or demand. In addition, innovative technologists are pioneering emerging technology where there is often no legal precedent and the regulatory environment frustrates innovation. Conexus Law will deliver robust, creative and commercially pragmatic global solutions in this fast moving and unpredictable sector.”

Source: datacentre.solutions/news/58394/law-firm-specialises-in-physical-and-digital-infrastructure