Mediation Under Coronavirus Lockdown
We’re in new territory as the coronavirus (COVID-19) continues to threaten and change our lives. But what does it mean for the number and nature of disputes? And what do social distancing measures mean for our options and chances of resolving disputes effectively?
With restrictions that limit face-to-face activity, it might seem obvious that the number of disputes would fall. However, other factors are pushing in the opposite direction to drive up demand for dispute resolution.
Commercial disputes fuelled by uncertainty and force majeure
The spread of COVID-19 has undoubtedly created disruption and uncertainty in the commercial sphere. Businesses are struggling to stay profitable and this inevitably leads to conflict. When businesses struggle, they can miss payments to suppliers desperate for cashflow and the current restrictions can make it impossible or impractical to meet contractual obligations.
Employees face uncertain times with changes to terms of employment, the implications of the government furlough scheme and its inevitable unwinding and the growing number of redundancies. All of these can lead to new grievances and disputes.
The Civil Mediation Council (CMC) has recognised that this disruption and the measures put in place to manage it are likely to increase the number of disputes. CMC Chair Sir David Foskett said in his letter to members:
“The need for mediation has not gone away and indeed it is an obvious, but perhaps regrettable, observation that the present situation could result in a greater demand for the help that mediators can bring.”
The UK Government also responded and on 7th May 2020 the Cabinet Office published its Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency. This guidance asks people and businesses to show responsible and fair behaviour in trying to perform obligations but also in requesting and giving relief for impaired performance.
Personal lives facing new strains
Outside of business, our personal lives have also been affected. People are spending much more time at home, in unusual and sometimes stressful conditions, and spending more time with the few people in their immediate household. Although this is not a bad thing per se, it clearly creates new frictions.
Home schooling, job worries, lack of socialising and a growing feeling of being trapped are ratcheting up the pressure at home. At its most extreme and worrying, the rising levels of domestic abuse have been widely reported. Beyond this there is a much broader tide of strained family relationships. Meanwhile, the surge in DIY and more time at home can lead to growing incidence of disagreements between neighbours, a common source of disputes ripe for mediation.
Resolving disputes during lockdown
Whilst lockdown disruption is doing nothing to reduce the number of disputes, the options for resolution are also being disrupted. The most well-known route of formal dispute resolution is, of course, litigation. It is also widely reported that courts are facing a growing backlog despite attempts to alleviate the problem by prioritising cases and accelerating the use of remote hearings.
This brings us to alternative dispute resolution (ADR) options; dominated by mediation and arbitration. In its guidance on contract disputes the Government “strongly encourage parties to seek to resolve any emerging contractual issues responsibly – through negotiation, mediation or other fast-track dispute resolution.”
Although mediation is typically conducted face-to-face, and some of its key benefits stem from the ability to get parties speaking and listening directly to each other, telephone mediations have proven to be effective. In addition, mediation practitioners are responding to the restrictions on face-to-face contact with innovative solutions. The mediation world has mirrored the social trend with an explosion in the use of video conferencing facilities such as Skype, Zoom, Go-To-Meeting, Microsoft Teams and Google Meet.
The CMC is continuing to play a central part in supporting the mediation sector with a series of initiatives aimed at both mediators and their clients. Online courses have grown to allow mediators to continue their personal development and membership requirements have been adapted to meet the current reality. The CMC has also published its guidance for online and remote mediation to help ensure the same levels of security, confidentiality, professionalism and effectiveness as with face-to-face mediation.
In arbitration or adjudication, service providers are also responding. The Royal Institute of Chartered Surveyors (RICS) and the Construction Industry Council (CIC) jointly developed the Low Value Disputes Model Adjudication Procedure which fast-tracks disputes through the use of an appointed, specialist adjudicator.
Resolve your disputes to save time, money and stress
If you find yourself caught up in a new dispute, an old one remains unresolved or your day in court has been delayed, mediation could provide a fast and simple solution. Even within the confines of lockdown, mediation can help resolve your dispute to save time, money and stress. As Tom Thomas OBE, Deputy Chair of the CMC wisely suggests in his recent article: