The End Is Not Yet Nigh: Remote Dispute Resolution in the Age of COVID-19

It would be nice if there was an inverse correlation between the frequency of family law disputes and the gravity of social crises, but, thanks to the peculiarities of human nature, such is not the case. As Canada’s provincial and superior courts batten down the hatches, it’s important to remember that efficient and effective dispute resolution alternatives exist, and are available even where trial dates have been set. Best of all, in this time of social distancing, many of these alternatives do not require the participants to be in the same room at the same time.

Mediation and arbitration can be used to resolve all or some of the issues in a family law dispute, even when litigation is well underway. I have yet to encounter a judge, or read a decision, chastising litigants for undertaking mediation or arbitration in the midst of litigation except in those rare cases where a party failed to engage in mediation or arbitration in good faith or used these processes for a collateral purpose. Most of the time, the court is delighted when litigants try to resolve their disagreements on their own… which in fact they do, given that the rate at which civil cases are resolved by trial is well under five percent.

The common characteristic that distinguishes mediation and arbitration from litigation is their flexibility. This allows processes and procedures to be designed that genuinely reflect the importance, value and complexity of the issues facing each family, and provides mediators and arbitrators with a fair degree of creativity in managing and resolving disputes; the only essential requirements for both roles are fairness and neutrality, supplemented, for arbitrators, by the obligation to observe the principles of natural justice.

This means, among other things, that mediation and arbitration needn’t always be conducted face-to-face. While I have no doubt at all that in-person conferences and hearings generally work better, holding meetings by teleconference and videoconference is a safe, effective, and sometimes necessary option, especially in these turbulent times.

Videoconferencing fits very neatly into my practice as a family law mediator, arbitrator and parenting coordinator. I run a genuinely paperless office, with documents being exchanged by email or, in the case of very large documents, through a secure client dropbox. (While I can’t seem to entirely stop people from bringing binders of tabbed exhibits to arbitration hearings for some reason, those documents are equally well presented to witnesses and myself in PDF form by tablet or laptop. The fact that documents provided in this form can be searched is a tremendous bonus.) The vast majority of my preliminary meetings, including pre-hearing conferences in arbitration files, are normally held online by video. However, I routinely conduct mediation conferences and arbitration hearings remotely where:

a) the parties and their counsel live in different cities, or in different provinces;

b) the parties live in rural or remote parts of Alberta and British Columbia;

c) in mediation meetings, the animus between the parties is such that their physical separation improves the likelihood of success; and,

d) in arbitration hearings, evidence is unnecessary or can largely be presented in written form.

I’m by no means alone in my use of technology to provide out-of-court dispute resolution services. Aaron Franks and Herschel Fogelman in Ontario hear interim applications and hold conferences remotely, although Herschel has some reservations about the use of videoconferencing to hear viva voce evidence. In British Columbia, Craig Neville, Eugene Raponi and Karen Nordlinger also make routine use of remote technologies. Craig does a fair amount of his parenting coordination work by teleconference, while Eugene integrates videoconferencing into his in-person arbitration work to facilitate the cross-examination of experts and the participation of out-of-town parties. Wayne Barkauskas and I, in Alberta, make a perhaps broader use of videoconferencing in our work as mediators, arbitrators and parenting coordinators, and are wholly content to conduct hearings remotely, including those requiring oral evidence.

Eugene, Herschel and I share a reasonable concern that remote meetings are not always as effective as in-person processes. However, “not as effective” doesn’t mean that they are ineffective. They are effective, although managing conferences and hearings remotely demands additional effort on the part of the mediator or arbitrator to maintain their control of proceedings and ensure that all parties are able to fully participate.

Expectations for the behaviour of parties and counsel must be clearly articulated before and at the beginning of each conference or hearing. People cannot be allowed to talk over each other. The mediator or arbitrator must be able to contain outbursts, and limit interruptions and other disrespectful behaviour.

Parties and counsel should be tactfully reminded to prepare as thoroughly for conferences and hearings held remotely as they would for conferences and hearings held in person. The formality of the process and the burden of proof are not degraded because the participants are not in the same room.

The mediator or arbitrator must know how their software, and the additional functionality available to them as conference moderators, works. For clients and counsel who are less comfortable with technology, it may be helpful to schedule a dry run to ensure all participants are equally comfortable with the software and equally conversant with its functionalities.

Other helpful suggestions can be found in MediateBC’s very useful manual, Mediating from a Distance: Suggested Practice Guidelines for Family Mediators.

Curiously, some of the features commonly provided by videoconference software provide a marked improvement over conferences and hearings held in-person. Most platforms allow the mediator or arbitrator to mute participants when necessary, enable or disable person-to-person chat, create private breakout rooms alongside the main videoconference room, create virtual whiteboards, and record meetings. However, many can also be configured to allow participants to:

a) display audio or video recordings;

b) instantly share files through the application; and,

c) share all or part of their computer screens, a feature that is especially helpful when reviewing complex documents.

As we all know, sanity doesn’t suddenly break out between separated spouses or parents just because the doors of the courthouse are locked. However, the end of days is not yet nigh. Mediation and arbitration are sensible, speedy and, as Karen points out, cost-effective ways of resolving disputes, including urgent matters, that would normally be dealt with in chambers or at trial. Remember, however, that in this time of coronaviruses and self-isolation, mediation and arbitration also work at a distance. If you have a family law dispute that can’t be heard, you owe it to your client to consider these alternatives.

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Postscript: As I wrote this column, the following, eerily on-topic note about client identity verification appeared in my inbox from the Law Society of British Columbia:

In unique circumstances where lawyers unable to avail themselves of any other verification method, the Law Society will take a reasonable approach in its compliance activity, if the lawyer verifies identification by using video-conference technology. Lawyers who verify a client’s identification using video conference technology should be able to demonstrate that they:

• • are reasonably satisfied that the government issued identification is current and authentic;
  • were able to compare the image in the government issued identification with the client to be reasonably satisfied that it is the same person;
  • record (with the applicable date) the method used to verify the client’s identification;
  • treat the transaction as a high risk transaction and continue to monitor the business relationship as a high risk transaction; and
  • document the efforts that were made to verify the client’s identity in accordance with the existing rules and the reasons why they were unable to verify the client’s identity in accordance with the existing rules.