As we (fingers crossed) emerge from the COVID pandemic over the coming months, one of the things we will ponder is how much we want go back to in-person mediation, arbitration and other proceedings.
There will always be many advantage to meeting face-to-face. The personal connection does help facilitate discussion and settlement of disputes. It is also an advantage for adjudicators to see and hear counsel and witnesses in the flesh.
But online tools have improved a lot in the past 18 months. So has our comfort level using those tools, many of which have been around much longer. How will we continue to use them together with in-person meetings, to get the best of both worlds?
Hybrid proceedings, where those who are willing and able to participate in person can do so, and others can participate remotely, may become the new standard practice for ADR.
Here are some thoughts on the potential advantages and disadvantages of hybrid ADR proceedings.
The pandemic has brought physical distancing and travel restrictions into sharp focus for everyone, but there are many reasons why some participants may not be able to attend a mediation or arbitration in person.
For example, participants in a complex, multi-party proceeding are likely to be widely dispersed. Clients may be in one city, counsel in another, financial or technical experts in a third. I’ve had technology disputes where key technical people were scattered around the globe; it would not be practical to bring all of them together for a one- or two-day mediation, or even a week-long arbitration hearing. But it was very effective to have the core business and legal team attend in person, with the technical folks on-call as needed.
On the other hand, there are also reasons why someone may not be able to participate in a completely virtual proceeding. High quality broadband service, needed to fully participate with audio, video and access to shared documents, is still an issue in many parts of the country. That will likely continue despite commitments to improve service. For those participants it may be necessary to travel to a central location, or at least to one with better access such as a lawyer’s office or satellite meeting/hearing room.
With advance planning, hybrid proceedings can accommodate the needs of all participants, even on short notice. For example, a participant who had planned on attending in person may be unable to do so for any number of reasons. Rather than postpone the whole thing, with inevitable costs and delays, that person may be able participate remotely.
The remote option is also useful for those who don’t need to participate for the entire proceeding. For example, an arbitration witness may only need to attend for a couple hours for cross-examination on their affidavit evidence (or to give evidence on a specific issue).
In a mediation, subject-matter experts may be on call and available to participate if needed. A senior decision maker may choose to join remotely when it’s time to finalize a settlement.
Hybrid proceedings can be efficient because they can be scheduled more quickly.
Preliminary matters can be dealt with online. Some matters may be settled earlier, clearing the way for the parties to focus on the remaining issues in dispute.
Online and hybrid proceedings may encourage participants to focus on the essential issues.
Having some participants join a mediation or arbitration remotely when they are needed is a more efficient use of everyone’s time.
Avoiding extra travel time for some or all participants gives flexibility in busy schedules. It may also avoid potential weather or other travel issues which can delay proceedings.
Cost is always a factor – and often a potential barrier – especially in smaller value disputes. Time is money, so anything that makes the proceeding more efficient and resolves the dispute more quickly will save money.
Providing a remote access option for some or all participants saves travel costs. It may also save on other out-of-pocket costs such as meeting or hearing rooms, meals, etc.
One concern expressed about hybrid proceedings, particularly by counsel, is that it may not be fair to all of the participants (i.e. their client).
Some remote participants may be disadvantaged by limitations in the technology. Video and audio glitches can make it hard for those participants to fully engage in a mediation. Even if it all works smoothly, they may feel disconnected from the proceeding and that they’re not being heard.
I also hear from counsel that they still prefer in-person mediation or arbitration.
Some say parties are more engaged when they mediate in person. It’s easier to disengage (literally or figuratively) in a virtual setting. People are less willing to compromise when they don’t have to face the other side. It’s easier to hang up on a ZOOM meeting than to walk out of a mediation room. Or just to be distracted by other work or personal matters when participating from home.
I don’t know whether this is really true. My experience doing virtual mediations for more than a year – and my conversations with others who have done a lot more on-line mediation than I have – suggests that they are as successful as in person mediation. But it does take a degree of skill and effort to ensure that everyone remains fully engaged, especially when some are there in person and some are remote.
With arbitration, the concern I often hear is that those in one location can’t see everything going on in another location.
If the matter is especially contentious, there may be fears that a witness is being coached behind the scenes. Or that the witness has access to documents or materials that the tribunal or counsel cannot see. These are concerns that can be addressed with appropriate use of the technology.
In some cases, counsel say they simply want to see the witness in person – and want the tribunal to see them, too – to test how they react to cross-examination. Fair enough, if the matter turns on the credibility of the witnesses.
In contrast to the efficiency argument above, the hybrid process may actually be less efficient if it is not effectively managed.
A lot of time can be wasted, if the mediator and the parties are not familiar with the technology. This is less of a problem now than it was early in 2020, but we may still need to spend some time in advance to make sure everyone is up to speed, hold technical rehearsals or provide tutorials, especially for participants attending their first on-line mediation or hearing.
In an arbitration, likewise, we need to ensure that time is spent efficiently. This includes electronic management of documents and other evidence, so they are available to all participants without any glitches.
It also means taking steps to ensure that all of the witness evidence is presented as efficiently as possible. There may be a temptation to add witnesses, even if their evidence is of marginal relevance, if they can give that evidence remotely.
Counsel may also expand their examination of witnesses at virtual or hybrid hearings. Maybe they are less comfortable or confident cross-examining remotely. Or maybe they’re less confident that the arbitrator is getting the point when it’s harder to glance over and see the arbitrator’s body language or expression.
Most arbitration rules give the tribunal the authority to determine how to proceed, so long as each party has a fair opportunity to present their case. For example, the ADR Institute of Canada Arbitration Rules expressly provide that hearings may be held in multiple locations and that all or part of the hearings may be held by telephone, videoconference or online, if the parties agree or the tribunal directs. In most cases, the arbitrator can work with counsel to decide the most efficient way to hold the hearings, but the arbitrator has the final say if counsel do not agree.
Mediation is a bit different. Both parties must feel that the process is fair for a mediation to be effective. So the parties must agree how and where to conduct the mediation. The mediator can work with counsel up front to decide whether an in-person, virtual or hybrid meeting would best meet their clients’ interests. The mediator can encourage them and work to build confidence in the process.
These are all considerations to be addressed by counsel and the mediator or arbitrator at the start of a proceeding. Our experience over the past couple years has taught us that virtual proceedings can be highly effective. Canvas the pros and cons of both in-person and virtual proceedings. Think about the possibility of a hybrid process, if circumstances warrant it. And be willing to adapt, as and when the situation changes.