Greener Dispute Resolution: More Efficient and Better for the Planet Too

I recently attended “Greener Arbitrations: The Path Towards Carbon Neutrality”, a webinar organized by the North America Committee of the Campaign for Greener Arbitrations (CGA-NA).

I was so impressed by their project that I immediately signed their green pledge. I also signed the green pledge endorsed by the World Mediators Alliance on Climate Change (WoMACC).

The pledges themselves are fairly simple. They encourage the use of technology to avoid unnecessary travel to hearings and meetings, and use of electronic documents instead of paper. When travel is necessary, they encourage use of more environmentally friendly transport and meeting facilities. And people pledge to take steps to reduce carbon emissions caused by their dispute resolution practices generally.

These pledges articulate the principles I’ve already been following the past few years, especially as pandemic restrictions on travel and in person meetings have required more online dispute resolution.

The challenge now is to continue to encourage greener dispute resolution as things open up again.

I spoke to Toronto mediator and arbitrator Marc Bhalla when I noticed that he refers to the green pledges at the bottom of all his emails. He says he took the green pledge last year and simply wants to encourage lawyers and others he deals with in his practice to think about it.

“The dispute has to be the number one priority, but there are little things they can do,” Marc says. “And hopefully those things can add up.”

Marc has been practicing – and advocating for – online dispute resolution for many years and he thinks increased awareness of the climate impact of dispute resolution is just one more reason to think seriously about ODR.

There are three steps to managing our collective carbon emissions.

1. Measure

We can’t effectively change what we don’t measure. Many arbitration organizations are now measuring (or at least identifying) the carbon emissions from all their activities. This includes administering bodies, law firms and individuals.

In person meetings and hearings are the biggest source of carbon emissions attributable to mediation and arbitration. Air and ground travel, hotels and meeting facilities all contribute direct and indirect carbon emissions.

A 2019 study concluded that it takes 20,000 trees to offset the carbon emissions from a typical medium sized international arbitration. (“The Resolver”, Chartered Institute of Arbitrators, Winter 2020, p. 14-15) At that rate it would take all the trees in Vancouver’s Stanley Park to offset just five arbitrations! Air travel can account for up to three-quarters of those emissions, the CGA says.

Conferences were also mentioned as a major issue, especially for international arbitration. Lawyers and arbitrators do love their get-togethers. In Canada, we often travel long distances to meet with colleagues from across the country.

2. Reduce

When sources of emissions have been identified, steps can be taken to reduce them.

One of the few silver linings from two-plus years of COVID is it has shown us that most dispute resolution can be done virtually, cutting the need for travel. Use of electronic document delivery and on-line materials also reduces our carbon footprint. (It’s not zero, but it’s much less.)

In person meetings and hearings are still necessary or preferable in some situations. We all miss social contact; some things can’t be done remotely for technical reasons or simply for procedural fairness. But we can still do things to minimize the environmental impact in those situations.

As in person conferences are starting up again this year, we’re seeing hybrid options so those who don’t want to travel can participate online. That’s a positive step.

The CGA has published a set of Green Protocols and a Model Procedural Order to give practical guidance to arbitrators and arbitration counsel. They include ways to reduce energy and waste in their own offices, more sustainable arbitration procedures and hearing practices, and means to offset unavoidable carbon emissions. Many of these apply to mediation as well.

Marc Bhalla noted that arbitrators have a lot of influence on the process. Mediators can also nudge parties toward greener options.

(It’s a shame that the Ontario Superior Court guidelines for civil proceedings, updated in April 2022, still provide for all mandatory mediations to be conducted in person unless all of the parties agree.)

When the default process is more environmentally-friendly – electronic materials, evidence in writing, virtual hearings, etc. – parties are forced to think about whether other options such as an in person hearing with printed books of materials are really necessary.

In my own practice, I tell parties I don’t want printed materials. Even before COVID many matters were paper-free (or paper-light). Now almost everything is electronic.

And I’ve noticed that, when mediation briefs and arbitration memorials link directly to the relevant documents or legal authorities, it tends to improve the quality of the advocacy. (Not to mention making my job of absorbing all that information much easier.)

Clients want dispute resolution to be cheaper and more efficient. They’re happy if their lawyer can say their money is being spent on improving the way the case is presented, rather than on travel and printing costs.

It’s all a matter of learning to use the tools effectively.

“Lawyers are becoming familiar with these systems and getting comfortable with them,” says Marc. “That will become the default. It’s just a question of how much time it will take.”

3. Remove or Offset

When carbon emissions can’t be avoided, there are options available to purchase voluntary offsets.

Both the mediator and arbitrator green pledge include commitments to offset carbon emissions from travel. Speakers at the CGA webinar said that there are many existing programs that allow organizations and individuals to buy carbon offsets. To be meaningful, these programs must be transparent, verifiable and permanent.

The cost is actually less than I thought. For example, Less.ca, which has partnered with Air Canada, recently quoted about $25 to offset a round trip economy flight between Toronto and Vancouver. On some airline sites, you can now buy an offset when you book your ticket.

Michael Bloxham, environment manager at the Freshfields law firm in London told the webinar audience about some things his firm is doing internationally to reduce its carbon footprint. The firm has been committed to carbon neutrality since 2007 and says it achieved its goal in 2015 through a 10-year commitment to the Reforestation in East Africa Programme, which pays farmers to plant fruit trees. More about the Freshfields’ sustainability goals and projects here.

But the purpose of the green pledge is not to salve our environmental conscience through carbon credits or offsets. It is to encourage all of us to practice dispute resolution in ways that are effective and efficient and, at the same time, have a lower impact on the environment.

The good news is that the past two years have taught us how to do this.