Our mediator, Wendy Alexander, regularly assists with the facilitation of settlements through online mediation.
A variety of disputes could be suitable for online mediation. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and that puts a prompt end to the costs of having the dispute ongoing.
Commercial lease disputes can often be suitable for online mediation.
At Norling Law, we receive a large amount of commercial lease disputes arising from the Covid-19 lockdowns.
Disputes between commercial landlords and tenants can be extremely stressful during the periods of COVID-19 lockdowns. Both parties are usually under financial pressure. The parties may have been negotiating directly in an attempt to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement on what is a fair proportion of rent and outgoings for lockdown periods.
Using online mediation is an option that could potentially resolve commercial lease problems quickly and efficiently. Online mediation is a low-cost option to consider before deciding on whether to proceed to terminate the lease and/or litigate. Cancelling a lease is a serious step to take and may result in severe consequences if not managed properly. Traditional mediation is usually a more expensive process as it involves the parties meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes, due to COVID-19 travel/meeting restrictions, traditional mediation might not be available at all for urgent matters.
What happens during online mediation?
Mediation is a form of negotiation where an independent and neutral person assists the parties to negotiate. Best described as a private facilitated negotiation. The primary objectives of mediation are to enable and empower the parties to negotiate and resolve the dispute promptly, cost effectively, and confidentially, rather than have a decision imposed upon them by a judge or an arbitrator.
Online mediation is a mediation conducted remotely, using online communication platforms such as Skype, Zoom and emails, or through phone. Unlike traditional mediation, the parties and the mediator do not actually meet in a physical sense.
Online mediation is generally more cost efficient and flexible than traditional mediation. The parties could appear through video from different geographic areas and reduce their travel costs. There is no need to hire a venue for mediation. Online mediation needs a strong Wi-Fi link and a willingness to negotiate.
Mediation can also be conducted in parts where the mediation can be paused for several hours or days while the parties consider their options. This can be useful when there are a number of issues to be considered. Wendy believes a mediation conducted over time could often lead to a better settlement for the parties.
Further, during the current COVID-19 environment when travel restrictions are a common occurrence, online mediation could be the only available method of mediation for some parties.
Online mediation is also a real option for parties whose conflict is so strong they cannot stand to be in the same room.
Fundamentally, the process of online mediation is similar to traditional mediation, however, there are inherent technical differences. Below, we illustrate the process employed by Wendy while conducting online mediation.
An agreement to mediate is circulated to the parties with a clear explanation of Wendy’s professional obligations. Amongst other terms, the parties agree to adhere to the confidential process of an online mediation.
Once the parties understand and agree to all terms of the agreement, the mediation process can commence.
First, Wendy meets with each party individually online (no more than 30 minutes). Together, they explore the issues confidentially. This part of the process is incredibly important. It establishes trust with the mediator and a clear understanding of the issues and interests of each party.
A skilled mediator can lower the emotional temperature in a negotiation to foster more effective communication. This is done by gaining the trust of both parties that the mediator is a neutral party who is there to serve both parties equally. According to a survey by Northwestern University law professor Stephen Goldberg, veteran mediators believe that establishing rapport is more important to effective online mediation than employing specific mediation techniques and tactics. Before people are willing to settle, they must feel that their interests are truly understood. Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.
The individual meeting is also a great opportunity for the mediator to reiterate the professional obligations a mediator has. Fundamentally, to always remain neutral and keep all information shared confidential (until express consent is given to share information).
Then, a joint discussion is scheduled where the parties explain to each other directly their objectives. They clearly explain to each other, in Wendy’s calming presence, what they were aiming to achieve in this negotiation.
In most cases, neither party to a commercial lease want the lease to end – the landlord needs to retain the tenant and get paid, and the tenant needs the premises so they could continue trading. However, both parties want the rent and outgoings to be paid fairly.
If the parties are invested in finding a solution (together with a facilitation from Wendy), it is usually all that is needed to end a costly negotiation quickly. The terms of the agreement reached are recorded in a formal deed of settlement.
Importantly, the parties can achieve a resolution quickly and cost efficiently. Both parties are then able to move forward and focus on running their businesses.
How can you find out more?
At Norling Law, we are passionate about providing our clients with a problem-solving approach to solving legal issues.
Online mediation is a dispute resolution process that could help to avoid hefty costs, uncertainty as to outcome, delays and significant stress.
Online mediation does have its limitations, in comparison with traditional mediation. As such, it is important to first ascertain with the proposed mediator whether online mediation is the best way for resolving your particular dispute.
Wendy has extensive experience as a mediator, including mediations conducted online.
If Wendy’s expertise can be of assistance, the first step is to send us the details of the situation here.
 Jennifer Parlamis, Noam Ebner, and Lorianne Mitchell in a chapter in the book Advancing Workplace Mediation Through Integration of Theory and Practice.