The coronavirus pandemic is having a significant impact on the personal and professional lives of people worldwide. In such an uncertain economic climate, alternative dispute resolution (“ADR”) is highly important; it provides a way for commercial conflict to be resolved smoothly, quickly and efficiently outside of the often costly and lengthy court process. This is particularly true now that many courts are delaying or suspending proceedings, or closing entirely, during the pandemic.
But at a time when people are stuck at home, the question is can ADR be effectively conducted remotely?
We take a look at the methods, practicalities and benefits of participating in virtual ADR.
Mediation is probably the most popular method of ADR. It involves a neutral mediator who seeks to assist both sides come to an agreement. Mediators can still act as an intermediary between the parties remotely and online platforms such as Skype, Microsoft Teams, Zoom, FaceTime, telephone and/or email can be used to hold joint sessions with all parties as well as separate private conversations. Crucially, private “rooms” must be created to allow for separate conversations to be held. The parties can hold private talks in their individual group and then move to the all parties group to discuss proposals with the other side. Online mediation is really taking off and mediations are being successfully conducted across the industry. It is also being actively promoted by leading mediation centres such as the Centre for Effective Dispute Resolution.
Arbitration involves a dispute being submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. As with mediation, arbitrations can be conducted remotely by using online conferencing platforms. Additional rooms will have to be set up to allow the arbitrators to privately deliberate.
Early Neutral Evaluation and Expert Determination
Early neutral evaluation and expert determination involve an expert reviewing the dispute and delivering an opinion or binding determination on it. They are most appropriate for technical disputes, such as rent reviews, share valuations or questions of contractual interpretation. Both can easily be conducted remotely. Experts can be sent the relevant documents by email and give an opinion or determination based on the papers alone.
Once parties get used to the concept, conducting ADR remotely clearly has significant benefits.
Virtual meetings and hearings are much easier to arrange. It is often difficult for all parties to meet physically at the same time and in the same location, especially in multi-party and international disputes. Remote ADR enables parties to participate from anywhere in the world, making it easier for parties to engage in the process. Costs are therefore reduced as there are no travel or venue fees. And the atmosphere may be less hostile and intense than when all parties meet physically, which may encourage parties to negotiate and move towards a settlement.
Indeed these benefits are likely to result in the continued use of remote ADR once social distancing measures are relaxed, as we see a move towards a presumption that ADR will be conducted remotely.
Parties should consider whether it is most suitable to use video and audio conferencing, audio conferencing or just email to conduct remote ADR. Audio and video conferencing is most engaging and can encourage discussion by ensuring everyone is seen and heard, in the same way as if the parties were all physically in the same building. Video and audio conferencing is also likely to be the most efficient way to talk through and resolve complex disputes.
Cyber security should be given serious consideration, as all parties must ensure they have sufficient protection to prevent the details of confidential and/or sensitive discussions being disclosed. The parties should keep a record of all cyber security steps taken by all participants, prior to starting. Physical security should also be considered. Parties should make sure they are situated in a private environment where their screen cannot be seen and audio cannot be overheard. Parties may also want to consider an express prohibition against recording the ADR proceedings.
Technical issues on the day of the ADR could waste crucial time and, in the worst instance, could result in parties walking away from the process and turning to the courts for a resolution. This could have direct cost consequences under the Practice Direction on Pre-Action Conduct and Protocols if this is seen as a refusal to participate in ADR. All parties should therefore test that they have a suitable connection and can use the chosen platform in advance of the meeting or hearing.
Parties should also consider and agree how documents are to be shared. Electronic bundles can be circulated before the meeting or hearing to ensure all documents have been made available. Screen sharing functions, on platforms such as Zoom, can then be used to enable participants to share content concurrently.
Social distancing rules may vary between different countries and areas. This should be thought through, particularly where parties are based in different countries. For example, a party may gain an unfair advantage if they are able to physically meet their representatives and/or the mediator or arbitrator. It may be preferable that if one party is required to appear remotely, all parties should do so.
ADR is a quick and efficient way of resolving disputes which often avoids the time and cost of the court process. Smart use of technology means that businesses and individuals can participate in ADR from home, meaning the current social distancing measures should not prevent disputes being resolved through methods such as mediation and arbitration. Indeed, going forward, we anticipate that the significant benefits of conducting ADR remotely will make it the preference of parties even once social distancing measures are relaxed.
By Stephanie Reeves and Ted Powell
Beyond the immense public health implications, COVID-19 poses a formidable challenge to the functioning of society, business and commerce. It is vital we all step up to face this challenge, and the dispute resolution community is no exception.