The majority of commercial mediations are conducted online. 5 points make up the tips of a star, and 5 points make up the vertices of the inner pentagon i.e. of the ‘Hub’ at the centre, which is where the vertices converge. The ‘5 Points’ in online commercial mediation are:
1. ‘Dynamic Commercial Drivers’ – i.e. each participant’s [‘P’s] wants, needs, priorities & reasons.
2. ‘Litigation risk’ – costs incurred/could be incurred in going to trial and adverse publicity.
3. ‘The price of doing a deal that is enough’ i.e. the Mediation maths.
4. ‘Existence of common ground.’
5. ‘Potential existence of hidden commercial value.’
By analogy to the famous voiceover slogan for Carlsberg Lager by Orson Welles broadcast in 1983 – online mediation ‘reaches the parts that’ litigation ‘cannot’, i.e. because the court does not have the power to order what the parties can creatively agree to engineer through collaborative negotiation. That is why online mediation is ‘probably the best’ form of dispute resolution ‘in the world’ where hidden commercial value may exist which can be jointly exploited for the P’s mutual benefit – see ‘Black Swans’ below.
The alchemy in the online mediation of a commercial dispute is to discover what lies at the centre, i.e. in the ‘Hub’, because that is common ground. The Hub is also the zone in which a ‘Black Swan’ may exist. ‘Black Swans are events or pieces of knowledge that sit outside our regular expectations and therefore cannot be predicted.. … There are those things we know … Those are known knowns. There are those things we are certain that exist that we don’t know. … Those are known unknowns and they are like poker wild cards; you know they’re out there but you don’t know who has them. The most important are those things we don’t know that we don’t know, pieces of information we’ve never imagined that would be game changing if uncovered.. … These unknown unknowns are Black Swans. … Finding and acting on Black Swans mandates a shift in your mindset. It takes negotiation from being a one-dimensional move counter move game of checkers to a three-dimensional game that is more emotional, adaptive, intuitive … and truly effective.’ (‘Never Split The Difference – Negotiating as if your life depended on it’, by Chris Voss (2016), rh Business Books, p.216).
An online Mediator needs to be aware of this concept and the importance of looking not only for what the P’s ‘don’t know’, but also for what the P’s ‘don’t know that they don’t know’. This is the USP of online Mediation, because no judge has the power to unlock what a trained mediator can help the P’s discover and agree for themselves. That is because online Mediation is a ‘process’ and not an ‘outcome’ driven method of dispute resolution, which engages and involves imagination of a better future for all.

Over the next two weeks I will be completing the writing of the ADR chapter of the 2nd Edition of the Contentious Probate Handbook, which I am writing for the Law Society. In that chapter, which currently runs to around 85 pages in length, I discuss: JENE; Mediation; Mediation Advocacy; and Mediating, in estate disputes, including Online Mediation using Zoom – which in my opinion has become the industry standard worldwide. The book will incude a Zoom Mediaton Checklist.