Newsletter Edition 17 - August 2020


Online mediation is here to stay

At a recent meeting, the directors of ABPI’s Dispute Resolution Center (CSD-ABPI) concluded that online mediation brought logistical ease, reduced costs, made the decision process more agile, and is here to stay. “There is no doubt that the online process will speed up mediation”, said Cláudia Grosman, director of CSD-ABPI. “Mediation is perfectly compatible with digital tools and can even expand the possibilities for different states and countries”, added director Rodrigo Azevedo.

The issue of the virtualization of ABPI’s conflict resolution system has been on the agenda before. In July, the CSD-ABPI Council issued Resolution 02/20, which addresses virtual meetings and hearings for its three chambers: Mediation, Arbitration, and Domain Names. The document contains recommendations for technical and administrative aspects, aimed at optimizing the system, such as the obligation for the participants of the meetings to keep the audiovisual camera on at all times “unless otherwise determined by the arbitrators or mediators”.

In regards to mediation, with the subtraction of face-to-face expenses involved in the system, such as the displacement of mediators, parties, and expenses with accommodation and meals, costs fall significantly. One can also consider the time factor, an economy that increases especially in mediations where the parties are in different cities, states, and even countries. Comfortably accommodated in their preferred locations or even in their homes, participants interact in virtual rooms at a more flexible time. “Online mediation expands the range of options in choosing mediators, without geographical limits”, confirms Miami-based attorney Paul Mason, who specializes in commercial arbitration and mediation.

It is known that, for those who have little familiarity with online tools, virtualization can be an initial inhibitor in the interaction of the parties during the mediation process. But, for this, the CSD-ABPI mediators make use of features in the Zoom platform in order to prepare their clients, such as, for example, engaging in a “simulated training” before the main meeting. The experience of lawyer Mariana Chacur, from Curitiba, with online mediation proves this. “The sessions prepared in advance take place more smoothly and work very well since the participants are relaxed and readied to handle the virtual tools”, she says. According to Chacur, the ideal is that the training is performed on the previous day by a third party, not directly involved in the process; moreover, to avoid any technical problems during the session.

Another challenge of online mediation refers to the guarantee of confidentiality, given that, technically, the virtual rooms allow the entry of people not involved and unauthorized in the process. In this case, a simple solution can solve the problem by having the camera rotate the room at scheduled times. Technology can also help if, during the session, the parties’ lawyers wish to be alone with their clients, temporarily opening a private window in the virtual room. Mason explains that the risks of invasion, hackers, etc. can be minimized by using passwords or virtually locking sessions in Zoom.

The idea that, unlike the face-to-face meeting, the online meeting omits important visual data from the participants can be offset by the additional gestural information that virtualization offers during the session. “Seen through the screen, the look, the expressions say a lot”, says Grosman. For her, another advantage of the visualization screen is that it shows all participants in a panoramic view, giving, at the same time, a view of the trees and the forest.