THE POWER OF TECHNOLOGY AND ITS ROLE IN THE ALTERNATIVE DISPUTE RESOLUTION ARENA

By: Hon. Elizabeth Bonina, J.S.C. (Ret.)
February 2019

As a former Justice of the Supreme Court, I have seen first-hand how technology has impacted legal proceedings within the courtroom. From technology-based evidence presentations and electronic submissions, to “day in the life” videos by plaintiffs demonstrating the daily challenges their clients face to video conferenced expert witness testimonies – technology permeates nearly every facet of today's modern legal proceeding.

Subsequently, as parties increasingly seek to settle their cases outside of the courtroom using alternative methods, such as arbitration or mediation, the role that technology plays provides endless opportunities to assist in the dispute resolution process. In my current role as a neutral for NAM (National Arbitration and Mediation), I have seen how the use of technology during these proceedings is key to a successful mediation or arbitration.

ELECTRONIC SUBMISSIONS PREFERRED
Most courts now require electronic submissions, and many ADR professionals offer the option of providing electronic submissions for arbitrations and mediations. Some neutrals, including myself, prefer that papers be submitted electronically. Not only is it more secure, expedient and cost-effective to deliver attachments electronically, it also allows for better use of a paralegal's time, thus being more time-efficient for all.

PRESENTING WITNESSES
When a key witness is not available for trial, it can lead to a missing witness charge, or other disastrous consequences. But when it comes to arbitration and mediation, technology can provide a solution. Witnesses, whether they are the parties themselves, experts, or even non-party witnesses, can testify using a variety of video conferencing solutions when they are not able to appear at a hearing in-person. In addition to having witnesses testify remotely at an arbitration, video conferencing can also be used during a mediation when an adjuster is from out of state, thus saving the carrier airfare, hotel costs and other travel expenses.

Private, secure virtual conference rooms are just another added benefit when leveraging the latest in video conferencing. Ultimately, remote technology enables parties to save time and streamline the costs associated with presenting witnesses and other key parties in-person.

A CASE IN POWERPOINT
One of the more interesting uses of technology I have encountered during my ten plus years as a neutral, was the use of “disposable” tablets during a mediation I recently oversaw . During that mediation, plaintiff's counsel provided inexpensive tablets to the defense, containing a PowerPoint presentation. Defense counsel and the adjusters were then able to take the tablets with them and were able to refer to parts of the presentation and evidence that would be introduced at the time of trial during our breakout sessions. This technique made an impression. The plaintiff was not only ready for trial, but they gave the defense the impression that plaintiff's counsel would invest whatever it took in order to try their best case.

MOBILE ADR APPLICATIONS
Technology makes it possible to hear cases remotely, demonstrate evidence more effectively and submit case documents electronically. The advent of mobile applications to enhance the ADR process represents a critical turning point in how legal proceedings are managed.

Mobile applications, such as NAM's (National Arbitration and Mediation) myADR® mobile app, provide parties with secure, instant access to critical case-related data and information in real-time, on any mobile device. Parties can electronically sign ADR contracts, receive case decisions as soon as they are available, receive automated case confirmations two days prior to a scheduled case, view their schedule of upcoming hearings, review the status of all pending cases, and have access to post-mediation agreements and decisions. NAM's myADR® application also gives NAM clients access to all roster and hearing officer profiles and the capability to submit new cases.

The legal profession is one that often requires its practitioners to be on-the-go and available at a moment's notice. In turn, technological innovation has made it possible for the mobile attorney to practice law and access important case-related information from anywhere at any time.

CONCLUSION
Needless to say, the use of technology in the Alternative Dispute Resolution arena is no longer an option, but a necessity. Whether it's a PowerPoint presentation, monitoring the facts of a case or presenting an expert witness 3,000 miles away – technology will continue to play a significant role in facilitating and expediting ADR proceedings.

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Hon. Elizabeth Bonina is a retired Justice of the Supreme Court, Kings County. She is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and is available to hear arbitrations and mediations throughout the New York Metro area. In 2018, for the sixth year in a row, Judge Bonina was voted a best Individual arbitrator in New York State by the New York Law Journal Reader Rankings Survey with three of those years being voted #1. She has been ranked a Top Ten Mediator in the state for nine consecutive years. Judge Bonina is also an Adjunct Professor of Business Law and Sports Law at St. Joseph's College in Brooklyn, New York.

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.