Virtual ADR Is Not Going Away Post COVID-19
Sadly, the light at the end of the coronavirus tunnel seems a bit faint until there is a proven innoculation. With no end currently in sight, the “new normal” of social distancing, telecommuting, and other dramatic changes to how we live and work will be with us for a while. This includes the way we attempt to resolve disputes.
2020 B.C. (Before COVID)
In-person mediation and arbitration effectively ceased by mid-March of 2020, as did most court operations in Michigan and jurisdictions across the country. This necessitated a wholesale move to virtual ADR for those who wished to pursue resolutions of new or pending matters. But what happens now, as states tentatively lift restrictions on conducting business in person? More importantly, what lies ahead for virtual ADR when the day comes – and it will – that COVID-19 is a thing of the past?
According to the New York Law Journal, mediators have availed themselves of Zoom’s platform since the early 2010s, and some neutrals had been conducting virtual mediation almost entirely online before the outbreak. Although there is little hard data out there, parties and their attorneys have been participating in remote ADR proceedings at a steady clip throughout the pandemic. Of course, that is because there was simply no other option. But ADRoit Dispute Resolution and counsel alike quickly adapted to the realities of online meetings, just like they’ve done in other parts of their professional and personal lives.
Zoom meetings have become second nature for many people, and ADRoit has developed and adopted best practices for ensuring that mediations and arbitrations remain confidential, secure, and effective. Parties can still exchange documents, share screens, execute agreements, and we can still engage in “shuttle diplomacy” and other one-on-one meetings by placing participants in separate, confidential caucus and joint session rooms.
We previously wrote about remote ADR in April 2020 to encourage parties and counsel to take advantage of it during the COVID-19 crisis. Even before that, in December 2019, we touted the use of telephone-based discovery mediation under the then-new Michigan Court Rule MCR 2.114(H). The writing has been on the wall – we took notice, and now others are reading the message.
Adopting v. Adapting to Virtual ADR
But it is one thing to adapt to remote ADR out of necessity and quite another to adopt remote ADR as a preferred alternative to in-person sessions. Whatever the technical and practical downsides of meeting remotely may be, the advantages it can offer to all involved may make it a more appealing proposition going forward, pandemic or no pandemic.
During the dozens upon dozens of online Zoom conferences ADRoit had conducted during the pandemic, some of the more common comments received have included:
“Well, it worked much better than I thought it would.”
“My business clients like it a lot – it saves travel time and money and we can still get things accomplished.”
“Joint sessions seem to be a lot more productive and less tense.”
“I really like being able to stay in my office.”
Not that remote ADR will necessarily become the rule rather than the exception when conditions revert to something resembling the “old normal.” But it is reasonable to expect that parties may be more open to online ADR given the positive experiences and proven technology that has allowed alternative dispute resolution to continue largely unabated during these unprecedented times.
Not a Flash in the Pandemic
Some are saying the virtual ADR horizon will only last as long as COVID-19, but some experts predict we won’t fully emerge from shutdown and rollbacks until 2021 and later. According to Michigan Lawyers Weekly, state courts logged more than one million hours of online hearings between late march and the end of September 2020, with nearly 1,000 judges and court officers now using Zoom.
When litigants must submit to online mediation, arbitration, and other web-based forums if they have any hope of quickly resolving their disputes, that extended window provides ample time for counsel to not only become accustomed but perhaps also develop a preference for virtual ADR.
We believe that will be the case, so much so that we have embraced Zoom and updated the terms of our engagements to incorporate virtual ADR as a standard delivery method on par with live sessions. It’s no longer a quest of if or when remote dispute resolution will become the norm, only how soon.