Online Mediation - Taking new Paths in Times of Corona

The repercussions of the coronavirus on the economy have already assumed enormous dimensions and have put many business relationships in a precarious situation. This bears a great potential for conflict, as naturally everyone must first of all be careful to keep the damage to themselves or their company as low as possible. The speed at which everything is changing and the fear for one' s economic existence also create a particular pressure which can lead to disputes, being conducted more relentlessly because people in these stressful situations are not as well prepared as usual to find reasonable solutions. In addition, personal encounters for a clarifying discussion are currently and probably for some time to come not possible due to travel restrictions and risk of infection.

On the other hand, reasonable cooperative solutions have probably never been more urgently needed in the economy than now. Experts agree that the economic system and its players will only survive the corona crisis relatively unscathed if the problems are solved together and not by acting against each other.

Online mediation can help to overcome this crisis. With speed, the pursuit of cooperative and constructive solutions and distance communication, online mediation offers the most important criteria that are currently required.

In mediation proceedings, the parties to the conflict are supported by an all-party mediator in resolving their conflict. With the help of the mediator, the conflict is considered in its entirety and it is worked out which interests the parties to the conflict actually pursue and which emotions, wishes and needs play a role in the conflict. On this basis, the participants jointly and independently develop a solution that in the ideal case turns their conflict into a win-win situation. A win-win situation in this context may even be a solution that distributes the resulting damage in such a way that the economic survival of both participants is initially secured and lays the foundation for new projects after the crisis.

Mediation proceedings may not be suitable for every conflict and do not require a careful examination of the legal situation which each party to the conflict should in any case carry out on its own to assess the opportunities and risks before entering into conflict resolution. In the current special situation, however, three fundamental advantages of mediation as compared to court proceedings are obvious:

1. The result of mediation, if successful, is an actual and forward-looking solution to the conflict which may also - or even only - contain elements that are not litigable at all, e.g. the agreement on team-building events, the development of new projects or the handling of future conflicts. There are hardly any limits to the creativity of the participants as long as the desired solution does not violate applicable law. The judge, in turn, can only decide on applications that have been submitted in due form on the basis of the legal and factual situation. Generally, this happens in relation to the past and can even lead to a situation where a process won does not help a party to solve its actual current problem. In the corona crisis, for instance, there may be a need for transitional solutions and contract adjustments that are difficult to achieve through legal proceedings.
2. After successful mediation, a solution is found that satisfies both sides and often helps maintain the business relationship. It is not uncommon for both parties to lose with the judge's decision. Even if one party is fully granted justice, the lawsuit has usually destroyed the business relationship.
3. Mediation proceedings usually lead to a solution of the conflict within a few weeks, if all parties involved pursue it vigorously, with careful preparation, holding a maximum of two meetings and coordinating the final agreement. Even in the first instance, court proceedings rarely take less than a year.

Mediation thrives on communication which also contains non-verbal elements. The option of online mediation thus seems to be unsuitable at first sight. So far, there have been only tentative approaches to online mediation, while the mass of mediators rejected procedures without face-to-face contact. This will probably have to change now. Modern technology now makes many things possible that no longer require face-to-face mediation. The real room can be replaced by a virtual room. Conceivable here are chat functions, audio and video technologies or even a complete digital room. As with face-to-face mediation, it is possible to make scanned documents visible to everyone, visualise ad hoc topics and even use creative technology options. This way, individual phases of mediation or even the entire mediation can be conducted online - provided that mediator and participants have access to an Internet-connected computer or laptop with a camera. Technically, online mediation requires little prior knowledge of the participants.

It should be taken into account that there are higher risks with regard to confidentiality in online mediation as it is not possible to prevent other people from being present in the background, even if all participants initially confirm in writing that no other people will enter the "virtual room" with them - which is to be recommended.

It should also be mentioned that mere telephone mediation is also a viable option. This type of conflict resolution is already successfully offered by some legal expenses insurers in consumer matters and is even used in the Netherlands, for example, in family conflicts. In commercial law, however, such mere telephone mediation will only be appropriate if the dispute is not very complex and must be resolved very quickly, and the technical requirements for online mediation are not available.

We will be pleased to advise you on the possibilities of rapid and cooperative conflict management and, if you wish, our experts, who have been trained as mediators, can also conduct online mediations. Should we be unable to guarantee our neutrality, for instance due to existing client relationships with your company, we will make recommendations for suitable mediators and accompany you through the mediation process.

Dr. André Depping
(Lawyer)