THE VIRTUES OF VIRTUAL ADR

By: Richard P. Byrne, Esq. | March 2020

The experience gained from a crisis can often prove meaningful – and even transformative – as adaptive changes, which otherwise may have evolved at a lesser pace, are accelerated.

In response to the coronavirus, there has, literally, been an overnight movement by parties to utilize virtual ADR techniques to resolve disputes. Present circumstances have necessitated the leap to a means and method for dispute resolution from which we will not likely retreat – even after the passage of present circumstances.  

This Mediator received his initial training in virtual ADR a number of years ago and has seen its acceptance grow, albeit slowly, since that time. There appeared to be an overall hesitation to its use.  Surely, there is a part of all of us which resists change and supports the old adage, “if it ain't broke, don't fix it.” And, setting aside the vagaries of human nature, there were also specific questions and concerns about the adequacy of the technology:  “Is the process secure?” “Won't there be glitches leading to delays and frustration?” “How will the confidentiality of the mediation be maintained?” and “How can the technology provide the equivalent feel and experience of an in-person session?” 

From this Mediator's perspective, those who have experienced virtual ADR would undoubtedly provide positive responses to all of the above.  The virtues of the process are even more evident given the challenges of doing business while the coronavirus is upon us.  

To begin, the parties are all able to see each other and interact with one another in real time over a secure, high-speed network. To participate, they need only to log in.   The session then proceeds no differently than if each of the participants was seated around the conference room table. Frankly, it is remarkable how soon one forgets the parties are not physically present as the focus immediately turns to the matter at hand. As the caucuses begin, the Mediator then has the ability to send an individual party or group of parties into separate, secure “conference rooms” and meet with them privately – no differently than if he or she had walked them across the hall and assigned them to a “brick and mortar” conference room.  

The technology also allows parties to make PowerPoint presentations or provide the other participants with on-screen views of documents or photographs – just as if they were being passed across the table for consideration.  

While this leap to virtual ADR may be a child of necessity, the impact will be far reaching. The savings in travel time and expense for out-of-town participants alone will be considerable. Presently, out-of-town counsel and/or their clients and/or their insurers may have to dedicate the better part of the day before, and the day after, a mediation session for travel. That will be eliminated. Virtual ADR will also allow additional team members to attend mediations from which they might have otherwise been precluded due to time or cost constraints. Logistical issues such as flight schedules, delays and weather will no longer be of concern. Even those nearby will be more productive if they are able to remain in their office to prepare, or attend to other matters, until it is time to log in and begin the session.  

This, in turn, will lead to increased ease in scheduling mediation sessions. The parties need only agree on the date and time – having the ability to attend from anywhere.   Flexibility can prove to be particularly important when a matter needs to be scheduled and addressed in a time-sensitive fashion.  

Thus, while the leap to virtual ADR is being accelerated, the bottom line is that its strengths are known, tested and available. For those who nonetheless remain hesitant (and, candidly, this Mediator was once in that camp, too, years ago), there is absolutely no downside to trying the process and experiencing its virtues.  

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Richard P. Byrne, Esq., is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases throughout the United States. He has successfully mediated issues in a wide variety of specialty areas, including commercial matters, employment discrimination claims, employment contract disputes, construction litigation, complex personal injury and property damage claims, together with insurance, reinsurance and risk transfer matters. Mr. Byrne has earned the distinction of being voted a Top 3 Mediator in the United States for the sixth straight year in the 2020 National Law Journal Best of Survey.  Further, he was ranked a Top 10 Mediator by the 2019 New York Law Journal Best of Survey for the past five years.  He was also voted a Top 3 Mediator by the 2018 Corporate Counsel Best of Survey and for the third straight year, was named a National Law Journal Alternative Dispute Resolution Champion, as part of a select group of only 46 Neutrals nationwide.  He has been awarded an A-V rating by Martindale-Hubbell, the highest rating available, based on its peer review process. 

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Meet the Author

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