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Our thoughts are with all those who are fighting this horrible virus and all those who have lost loved ones to it, and our thanks go to the staff of the NHS and to all the key workers who put themselves at risk daily for the rest of us.
Throughout the Coronavirus Pandemic we have continued to mediate by online video conference with considerable success. The UK Government requires work to be done from home (i.e., online) if possible. This requirement is set to continue until June 21 2021 at the earliest. The position is to be reviewed in the run up to that date, and as a result of that review the requirement to work at home may be continued beyond June 21, or relaxed from that date*. Any relaxation from June 21 may be subject to continued restrictions**. Fortunately, mediation works well online. Settlement rates are comparable to those for face to face mediation. Online technology allows clients, solicitors and counsel to join an online mediation from different locations, and provides virtual rooms where each side can confer in confidence. Until face-to-face mediation is possible without restrictions, we recommend online mediaiton on pure mediation grounds. Accordingly, we accept all bookings on the basis that the mediation will take place online, but we will review the position after June 21 2021 in the light of both Government rules and what is necessary then to ensure the health of those attending our mediations. Where, exceptionally, online mediation is simply not possible, we will mediate in accordance with our Coronavirus Protocol in order to ensure that mediations can take place as safely as possible. Boundary disputes, which may require a site visit, are an exception, and we have a separate protocol for boundary disputes.
We cannot however guarantee the safety of those attending face-to-face mediation during the pandemic, and by conducting a face-to-face mediation and / or adopting and / or (at our discretion) waiving any aspect of the following Protocol neither mediation1st nor any of our individual mediators accept that a mediator's duty extends to ensuring the safety of those attending a face-to-face mediation.
Protocol
Until further notice mediation1st accepts bookings to mediate on the basis that all parties and their advisors will adhere to the following protocol.
1. Where possible, the default position should be that the case will be mediated online. Most cases are suitable for online mediation which is risk free, cheaper, and has similar settlement rates when compared to face-to-face mediation as it was before the pandemic, and better settlement rates than socially distanced face-to-face mediation.
2. Where, exceptionally, the mediation has to proceed face-to-face, any person proposing to atttend (whether litigant, advisor or mediator) who displays the symptoms of Coronavirus (persistent cough, sore throat, fever, high temperature, loss of sense of taste or smell) at any time (even on the morning of the mediation) should inform the mediator immediately. If that person's involvement is essential to the mediation, then that person may be able to join the mediation by video conference / telephone. If the mediation in question cannot reasonably be conducted with that person "dialling in", the mediation may be postponed and mediation1st will not charge a cancellation fee.
3. Coronavirus can survive on paper for up to five days. To avoid documents passing through multiple hands, either before or during the mediation, the Mediation Bundle and Position Statements will be supplied to the Mediator and (where appropriate) to other parties in PDF or other electronic form.
4. Travel to the mediation venue on public transport presents a heightened risk of infection. The parties will consider this in their choice of venue. Out-of-town venues with car parking (these also usually have larger rooms that will be more suited to social distancing) are likely to be preferable to inner city offices or chambers which may be accessible only by public transport.
5. The mediator may make directions e.g. as to the venue / a later start time and / or a pre-determined finish time in order to facilitate the parties and / or their advisors and / or the mediator travelling to the venue by private car rather than public transport or to enable those attending the mediation to travel by public transport out of rush hour. Any person requiring such a direction to facilitate their own travel is asked to notify the mediator as soon as possible.
6. Rooms for the parties and the mediator should be "Covid-secure": reachable without lifts where possible, private, well ventilated, and supplied with hand sanitiser. Air conditioning that does not draw air from an external source, and therefore circulates internal air, such as a split air conditioner, should be switched off. Windows should be opened where possible. Arrangements for regular cleaning and disinfecting, particularly of doorhandles, should be in place. If weather conditions permit, an outdoor location would involve significantly less risk, and require less social distancing.
7. The Mediator may ask those participating in the mediation to submit to a non-touch forehead temperature measurement. Anyone with a high ("red") temperature will be asked to leave the mediation, but may be able to join the mediation by video conference / telephone. If the mediation in question cannot reasonably be conducted with that person "dialling in", the mediation may be postponed but (since the mediator will by that stage have travelled to the venue) a cancellation fee will be payable.
8. Handshakes will not be used. The Indian "Namaste" / Buddhist "Gassho" / Thai "Wai" is an acceptable non-contact alternative. A friendly wave is also fine!
9. In accordance with UK Government guidelines for premises providing legal services, masks will be worn throughout by all participants. Plastic visors, which may provide a limited degree of aditional protection, may be worn in addition to face masks, but are not an alternative to them.
10. Social distancing will apply. For a mediation indoors that may take 8 to 10 hours this will require signficantly more than 1 or even 2 metres distancing, even with masks being worn***.
11. Coronavirus is present in an infected person's bodily fluids and flushing a toilet has been shown to have an aerosol effect, making the virus airborne. Toilets should be flushed with the lid down to minimise this effect, and two minutes should be allowed between the use of toilet cubicles. Arrangement for regular cleaning and disenfecting of toilets should be in place.
12. Mediation1st reserve the right as a last resort to decline to mediate a case face-to-face where the arrangements do not comply with this Protocol or in the light of changing Government advice. Mediation1st or individual mediators may in their absolute discretion waive or vary any aspect of this Protocol in the light of individual circumstances.
We are always willing to discuss any concerns or suggestions in order to ensure that all involved may have full confidence in the mediation process.
* "Covid-19 Response - Spring 2021", presented to Parliament by the Prime Minister on 22 February 2021, see in particular paragraphs 106, 115, 125 and 145.
** "Covid-19 Response - Spring 2021", presented to Parliament by the Prime Minister on 22 February 2021, see in particular paragraph 145
***If you're really interested in how the virus spreads indoors, take a look at this article by Professor Erin Bromage at the University of Massachusetts. The section on transmission in a restaurant will be directly applicable to a mediation. But be warned, it's a bit of a grim read!