Re-Thinking How We Resolve Disputes in a Time of Global Pandemics and Climate Change

In person if necessary, but not necessarily in person…

The Superior Court of Justice in Ontario issued a notice on March 13, advising people not to go into any courthouse, if they have been advised to self-isolate in response to the growing COVID-19 pandemic. The courts remain open to the media and public (this may have changed since I wrote this…) but anyone who has COVID-19 symptoms, has been advised to self-isolate, or has travelled from an area under a travel advisory should stay away. This includes civil litigants and criminal defendants, who are advised to contact their lawyer or the court if they are required to attend for a hearing or trial

Other courts, administrative tribunals and agencies are making similar decisions to try to limit physical contact for the protection of their employees and the public. People are “social distancing” (heaven for introverts) or self-isolating.

This got me thinking about how the current crisis should be prompting all of us to re-think some things we have taken for granted about dispute resolution, including the presumption that it is best done in person.

It also comes on top of heightened concern about climate change and a movement to reduce unnecessary travel.

(I may be stretching to look for silver linings during a very worrying time, but the New York Times recently noted that one consequence of the COVID-19 pandemic may be a positive effect on climate change.

“Any time you can avoid getting on a plane, getting in a car or eating animal products, that’s a substantial climate savings,” Kimberly Nicholas, a climate researcher in Sweden, told The Times.

Driving is a major contributor to climate change in North America. Air travel also has a very large impact: Ms. Nicholas said a round-trip flight from New York to London produces as much greenhouse gas emissions as the preventive climate impact of nearly eight years of recycling. By that measure, a round trip flight between Toronto and Vancouver would equal about five years of recycling…

On the other hand, if everyone drives everywhere in Canada, rather than flying or taking public transportation, maybe carbon emissions will actually go up. You can’t win.)

Delos Dispute Resolution, an independent arbitration institution in Paris, recently published a very thoughtful online checklist entitled “HEARINGS IN TIMES OF COVID-19”.

“Consider the potential disruption that not taking steps – moving the venue, postponing the hearing or conducting it online – may create for participants and their families.”

Delos says the checklist applies to both arbitration hearings and mediation meetings. It is a work in progress, and they welcome feedback.

The checklist asks whether it is safe to attend an in-person hearing. It includes health and safety best practices for the hearing room itself.

Can the hearing be moved? Do all of the participants really need to attend?

Are the participants able to travel? (This is a common question in international disputes, due to broader political travel restrictions. It also makes Canada an attractive location for arbitration.)

Can the hearing be shortened, postponed, or held online?

Delos also asks whether it is safe to send documents to participants by courier. Where are they coming from? Who is handling them along the way?

There is a strong argument in favour of electronic exchange of documents in all cases, not only when there is a pandemic.

I think we should also be routinely considering the climate impact of travel to attend hearings (or to ship physical documents).

Developing and adopting similar checklists would be a very useful exercise for the Canadian dispute resolution community.

Online Dispute Resolution (ODR)

ODR is not new. The federal Department of Justice published an ODR reference guide and checklist in 2012.

The United Nations Commission on International Trade Law (UNCITRAL) has also posted a number of online resources for ODR. Although they generally relate to electronic commerce (business and consumer), and some of the links and references are quite dated, there are links to sources of information on best practices that apply to ODR more generally.

There are several resources available for those interested in learning more about online dispute resolution tools. For example, Dr. Evan Hoffman (@drevanhoffman), of the Institute for Applied Conflict Management at Nippising University, recently posted on Twitter and LinkedIn a comparison chart of a few different ODR platforms. They include Zoom and Skype, which are both available free, and the paid services from Modron, OntheMove, and Resolve Disputes Online.

Since 2017, the Ontario Superior Court of Justice has allowed counsel to appear by video conference for some matters on the commercial list, estates list and other civil cases in Toronto. The court uses CourtCall, a third party videoconferencing service, which counsel can use without prior approval of the court (though they must register with CourtCall and pay for the service). It also allows other videoconferencing methods, with prior approval.

However, I’m told that many lawyers outside Toronto still prefer to make the trek into the city to attend court in person, because they fear videoconferencing may somehow disadvantage their client. There are concerns that parties attending in person have an advantage over those attending remotely. Or counsel worry about missing out on the hallway conversations that may open the door to settlement.

Lawyers are a naturally cautious lot. They are reluctant to try new technology. Why does anyone still use faxes? Or ship binders of printed documents? (As Danny DeVito says in his ubiquitous accounting software commercials: “Is this the 80’s?”)

Still, there are major cost (read “access to justice”) advantages to ODR. Now you can add personal heath and the health of the planet to the list of benefits.

Online dispute resolution may well become the new normal. We’d better get used to it.