The What, Why, and How of NDAs: The Importance of Confidentiality Agreements
You might have heard of Non-Disclosure Agreements (“NDAs”) – but perhaps...Learn More
May 15, 2020
For those of us that rely on a laptop, smartphone and decent wifi signal to complete our work, the transition to a bunkered up WFH existence has been, whisper it, fairly straightforward.
Sure, conversation with colleagues has been replaced by quarrelling with those we live with and home caffeine supplies are evaporating before our very eyes, but for the most part we’ve adapted to this new way of working.
Although the transition has been pretty seamless for many of us as individuals, businesses are facing pressures that cannot be resolved by a mere change in ‘office’ scenery. Fulfilling existing obligations has become problematic at best and, at times, impossible, inevitably creating a dispute rich environment.
Add to this that before now parties could meet informally to try and hash out their differences or engage in a variety of alternative disputes techniques such as mediation to help put their differences behind them. Social distancing restrictions however have made many forms of dispute resolution, particularly face to face mediation, very challenging.
With such opportunities for personal face to face engagement seemingly off the table for the moment, can the power of technology be used to maintain and perhaps even enhance the appeal of mediation as a dispute resolution tool for businesses; not just for the now but also for the future where VR avatars rather than people shake hands with each other.
If you left your dispute resolution phrase book at the office pre-pandemic here’s a recap. Mediation involves a neutral third-party facilitating negotiation between the parties with a view to reaching a settlement.
It enables those involved to discuss the key issues of a dispute in a confidential forum and without prejudice – in other words, a party does not need to fear that any concessions it makes during a mediation could later be referred to in court proceedings if settlement is not reached.
It’s popularity also owes something to the fact that its informal nature lends itself to parties speaking openly and frankly with each other and the fact that the parties are free to dictate not only how a dispute is resolved but also when, where and how a mediation takes place…
Whilst it is also perceived as cost effective next to the considerable costs that can be involved in parties battling each other in Court, the hidden cost of committing a business’ key decision makers to a day of offsite shuttle diplomacy should not be ignored.
In yesterday’s world, cost reducing innovations have not moved materially past the possibility of telephone mediations, particularly for lower value claims. However, with no visual interaction between parties, the risk of disengagement is significant.
In the wake of COVID 19, the Civil Mediation Council (CMC), amongst others has issued guidance on remote mediation focused around the possibilities of video conferencing. Whilst that guidance stops short of naming a specific platform and a number are being road-tested by mediators, one solution appears to be zooming ahead of the competition.
Video conferencing has its benefits – reduced costs, more flexibility around meeting times and the ability to log on from any device. There are however headache inducing drawbacks too.
Beyond the more cosmetic problem of poor internet connection leading to the dreaded face freeze and an uncompromising pose, the more serious threat of zoom-bombing has become the talk of the town in recent weeks.
While it’s far from the ideal situation in a team meeting, the thought of an uninvited guest hacking into a highly confidential mediation session is unthinkable.
There is also an underlying feeling that something is missing – the value in meeting face to face and seeing the whites of your opponent’s eyes cannot be ignored.
So, will we keep using remote mediation when normal life resumes? Certainly, as we have adapted to and in some quarters embraced our new ways of working as individuals, businesses may well decide that the reduced cost and operational investment required in remote mediation is well worth not having the opportunity to shake your opponent’s hand.
In our view, anything that enables us to resolve disputes more efficiently for our clients should be developed.
Beyond this, with virtual event platforms like Teooh entering the market and Facebook’s investment in Oculus and Horizon showing no signs of slowing, could we see a future where donning your virtual reality headset and taking the form of your online avatar becoming the norm for a day of mediation?
The past two months have proved that much of what we thought was impossible is readily achievable from a physical distance and given the pace of technological innovation, we may well soon see VR helping to facilitate the virtual “hand-shakes” and non-verbal cues that are currently missing from remote mediation by videoconferencing.
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