When in person hearings trump remote

Sometimes in-person hearings can lead to better and more cost effective outcomes.

Almost six years ago, we discussed the use of video conferencing (VC) in dispute resolution (DR) in this column. VC was an unfamiliar tool that the pandemic rendered indispensable. Since then, the use of VC has become normal with DR and ADR practitioners acknowledging its time and cost saving benefits. Additional benefits for wider society are also emerging, including improved access to justice (see, for example, the recommendation that video links be used to reduce Crown Court backlogs).

Rules, video technology, online platforms and guidance are now in place to facilitate effective remote/hybrid hearings. The TCC Guide includes guidance on and options for fully/partially remote/hybrid hearings where appropriate and where efficiency can be balanced with justice. HMCTS introduced its Cloud Video Platform (CVP) during the pandemic. In 2024, a bespoke tool for handling judicial processes – the Video Hearing Service (VHS) – was introduced as a pilot in some courts. A body of user guidance is also developing (like HMCTS Remote Participation Approach).

In the ADR context, online meetings can be convened at short notice and help overcome both cost issues where budgets are strained and logistical issues that would otherwise make an in-person day hard to coordinate. They offer the “simple convenience [of remote hearings]” that mediators cited as factors for parties choosing an online mediation in CEDR’s eleventh mediation audit.

However, while time and cost savings are important when deciding on process, other more nuanced factors might indicate that settlement chances could be improved by an in-person meeting − thereby justifying the extra time and cost. For example:

• Where settlement negotiations have taken place without success, an in-person meeting might help break the deadlock.
• The very prospect of a face-to-face meeting might more fully engage the attention of parties that have so far avoided discussion.
• Where relationships have broken down, a mediator in an in-person setting might be better able to build trust between the parties, to help them understand each other’s position and bring them closer to settlement. It is easier to assess tone and the reactions and levels of [dis]comfort in a room full of people than on a screen. Reading such body language in situ can provide valuable insights that enable a mediator to make useful interventions.
• In-person settlements that do not settle on the day are rarely a failure. Often they re-establish cordial relations, creating opportunities and laying the groundwork for settlement after the mediation.
• Complex technical issues in dispute might be more effectively explained in-person. Interaction around a table can promote constructive discussion.
• In multi-party disputes, breakout meetings amongst parties are easier to organise without hampering the flow of process. In-person mediations can also create social opportunities that can ease tension between the parties.

Parties could also adopt a hybrid approach in ADR processes as a way of tailoring the process to their exact requirements. Preliminary meetings and virtual site visits could be held online while the mediation is held in-person. Technical experts could meet in-person while the main negotiation is conducted online. Some participants could attend in-person, some online.

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