Mixing Distance and Technology into the Agreement to Mediate

Distance Family Mediation by Susanna Jani

The Agreement to Mediate – every professional mediator uses one. And, if what I’ve seen is any indication, the one they use is likely pretty similar to the Agreement to Mediate document that their mediator colleagues use.

If you are a mediator who uses one of these “typical” Agreements to Mediate, there’s a good chance that you haven’t (yet) addressed in it the types of unique issues that distance mediation can present – for example, how the Agreement to Mediate itself will be signed when all of the participants in the mediation are in different locations, or how confidentiality will be managed when parties are in their own home where there could be Someone Else lurking in the background during the mediation session. Or, my personal favorite, how participants will deal with process disruptions in the event the technology decides it’s going to have a bad day.

Is it important to address these special issues in your Agreement to Mediate, in cases where you are conducting the mediation from a distance and using technology? We think so. In fact, our project’s distance mediation team members have applied their considerable expertise in family mediation and law, and their experiences with communication technologies, to look at how the differences between distance mediation and traditional in-person mediation should be reflected in the Agreement to Mediate document we use in our service.

Here, shown as italicized clauses, is what our team* came up with. These clauses are, of course, mixed into the rest of our Agreement to Mediate – which is, in other ways, pretty similar to the “typical” document I’ve seen used by many family mediators here in British Columbia.

• Location of the mediation:
  The parties and/or the Mediator are at a distance from each other and intend to mediate from different locations.

• Without prejudice communications and inadmissibility:
  Without limiting the generality of the foregoing, no party will disclose or attempt to compel disclosure of:
  …..[a – e in our document are omitted here, as they are not relevant to distance mediation]…
  d) any notes, e-mails or any other communications made by a party or the Mediator during the mediation process.

• The use of information and communication technologies:
  i) The Mediator and the parties will rely primarily upon information and communication technologies to communicate with the parties and their counsel, and to conduct or participate in the mediation.
  ii) The Mediator, Mediate BC Society and the Distance Family Mediation Project do not endorse any of the information and communication technology products or services used to conduct the mediation. Because the Mediator is “testing” the use of information and communication technologies under the auspices of the Distance Family Mediation Project, there may be process issues and disruptions. The Mediator and the parties will make efforts to minimize the impact of any such disruptions on the mediation process.

• Confidentiality of information:
  i) Each party agrees not to have another person in the room or within hearing distance when using any information and communication technology to participate in the mediation.
  ii) In particular, each party agrees none of their children will be present or within hearing distance, unless that child will be participating in some way in the mediation, and this has been expressly agreed upon by the parties beforehand.
  iii) If either party wishes to have another person in the room, they will obtain permission of the Mediator and the other party prior to the mediation session beginning.
  iv) Where all the parties agree that the other person will be privy to the mediation process, that person must sign the Agreement to Mediate and is bound by the terms of agreement.
  v) Each party recognizes that, given the use of information and communication technology, it is not possible to ensure that all communications will be confidential.
  vi) Each party commits to minimizing the chance of inappropriate disclosures, including protecting access to any e-mails, notes or other information relating to the mediation which may be stored in their computers or elsewhere, and to minimizing the consequences of any such disclosures should they occur.
  vii) Each party understands that, given the use of information and communication technology, it is not possible to completely control where or how some personal information may be collected, stored or accessed.
  viii) By signing this Agreement, each party specifically agrees to the Mediator using information and communication technologies in the context of the mediation, and releases the Mediator from any liability in the event of any inadvertent disclosure.

• Counterparts:
  This Agreement may be entered into by each party signing a separate copy and delivering it to the other party and the Mediator by fax, scanned e-mail attachment, or other means.

• Cost of mediation:
  (While, for the time being, our current distance mediation service covers parties’ costs incurred in using the technologies, in an earlier phase of the Distance Mediation Project we also added the following clause.)
  Any other costs, including disbursement costs and costs incurred to use information and communication technologies to participate in the mediation, will be paid by the parties.

And now for a confession:
You may be reading this only because you are wondering how such a scrumptious-looking strawberry dessert could possibly be connected to the Agreement to Mediate.

The answer, I have to confess, is that there is no connection. In response to an earlier posting, Reason #3 to use distance mediation, a reader sent me her theory about how blogs would attract more readers if they had food pictures. I became completely convinced she had a valid point when I saw that mesmerizing strawberry dessert photo. After all, the alternative – if I was going to post a picture that actually related to today’s blog – would have been a photo of a few sheets of paper. Need I say more? (Thanks for the tip, L.T.!)

* In addition to the input from our private practice mediation team members, these clauses have benefitted from the work of Shelina Neallani, Acting Child Protection Program Manager and Education Coordinator for Mediate BC Society. Thanks also to team member, Jane Henderson Q.C., who truly went “above and beyond” in her work on our Agreement to Mediate.

Photo credit: “Strawberry shortcake” by shok (CC license)

                       

Susanna Jani

For a decade, Susanna Jani was Roster Administrator for the B.C. Mediator Roster Society*, managing its day-to-day operations, activities and projects, including the initial research phase of the Distance Family Mediation Project. In 2009, she followed her passion for this environmentally-friendly project and became Project Coordinator for its second, pilot… MORE >