Yes, although it can come at a cost. As with most business decision, it is about balancing priorities.
There are no rules to say you cannot work online or take business calls during a mediation. The consequences of doing should be balanced against the opportunity to settle the dispute and, at all times, the confidentiality of the mediation must be kept.
The question to ask yourself is, “What will help me get a settlement at mediation?”. It is one thing keeping an eye on your emails during the mediation process and quite another to engage in a full-blown negotiation of a new contract or engage in a tender process. If your dispute were in Court, the Judge would not permit you to take calls during the trial.
You will be asked when it is convenient for you to attend mediation. The date is arranged around what is a good day for you. Avoid arranging other meetings, over committing and putting yourself in two places at once. Prepare work colleagues for you not being available, put on your out of office and indicate that you are in a day’s meeting. All of these will hopefully give you time and space to mediate.
If it is a work dispute, you are working on the business in any event. If no settlement is reached at mediation, the likelihood is that you will have to invest more time to the dispute in the future. Committing to the mediation could therefore save you time and money in the long run.
There will be occasions when the mediator leaves you to go and speak with the other party/parties. Sometimes these waiting sessions can be quite lengthy. There are therefore opportunities to check your emails or check in with work. Having something to do during the waiting can be helpful and the key is not to get too distracted and not to commit to being available for something else on the day of the mediation. Mediations can run over their allotted time. It is better not to assume the mediation will finish at 5p.m. and book a call for 5.30p.m.
As the mediation progresses, the mediator will often ask you during these waiting sessions to consider different options, secure missing information, or think through your negotiation strategy. Your attention is best committed to these tasks if you are to have the best opportunity of securing a settlement. It is often the first chance to step away from the business and have proper time to think through creatively all of the options and what would be in your business’s best interests going forward. Continuing to be available for other work can negate those benefits. The person or business that potentially loses out as a result is you.
The mediation agreement, signed by the parties prior to the mediation, will ask for confirmation that those attending are mediating in good faith. In other words, with a genuine desire to find a resolution and settlement. If you are too distracted, this commitment will be challenging to fulfil.
My advice is to anticipate the sessions when you will be left alone or with your colleagues and legal representatives and have something with you to fill this time. Don’t assume though that you will have the time to do it. Give yourself the space during the mediation to focus on securing a settlement.