VIRTUAL ADR IS HERE TO STAY
By: Hon. Larry S. Schachner (Ret.) | May 2020
We are now all faced with the reality of social distancing, constant hand washing, flattening the curve, business closures, and the tragic public health consequences of the coronavirus. As we all try to adapt to the new normal, I am thankful that technology has allowed me to continue working while adhering to the government regulations. As a Mediator, I had been trained on the use of video conferencing, and to some extent teleconferencing, early on in my career at NAM (National Mediation and Arbitration), and occasionally used it where a party participating in mediation could not appear in person. Now, with the new reality, video conferencing is fully operational and enabling us to continue to provide seamless ADR services. I have always been wary of utilizing new technology. Well, I am here to tell you it is quite easy to use, even if you are technically challenged like myself.
I am a former Supreme Court Justice and had been in the court system for almost 30 years. I was used to the court's bureaucracy grinding along at a glacial pace, unable to adapt to change. As I write this, the courts in the New York metropolitan area remain closed regarding all civil matters, with only limited processes being put into place for certain court functions.
Obviously, this makes it very difficult for many firms to continue their normal operations. If justice was slow to be dispensed via the court system up until now, it is unimaginable how the backlog will be overcome once the courts do reopen. Thankfully, NAM, with its private sector agility, foresaw the need for remote conferencing well before the current crisis and was prepared to hit the ground running when the need arose.
Video conferencing gives attorneys the ability to continue working remotely, serve the best interests of their clients by moving cases forward and permits them to resolve disputes without waiting indefinitely for the courts to reopen. NAM regularly schedules video conference mediations and arbitrations for cases and participants throughout the United States. It appears evident that when life does return to normal, the use of video conferencing will expand further and become commonplace, as companies realize that they can be present at a mediation or arbitration without needing to travel to the location and lose an entire workday or more.
Since the coronavirus crisis began, I have presided over many video conferenced mediations and arbitrations. The feedback that I have received has been extremely positive across the board. Bottom line – video conferencing a mediation or arbitration is as effective as any in-person ADR setting.
How does it work?
The nuts and bolts of it are quite simple; you only need a computer with a camera, mobile phone or iPad to access an internet connection to download the free ZOOM application. Once you are logged on to ZOOM, just follow the simple instructions to “Join the Meeting.” The Mediator will be the host. And just as in an in-person mediation, everyone will start out together in one “room” and the parties are able to see and talk to each other. Exhibits can be shown to the mediator and the other parties. Then, each side will be separated into their own “breakout room,” with absolute privacy while you are in your own private virtual room. The Mediator can enter the breakout room to discuss each side's position privately and conduct virtual shuttle diplomacy to resolve the case.
In arbitration, the witnesses can be present with their attorney or testify from their own location. Demonstrative evidence can be utilized and viewed by all parties. Opposing counsel will then be able to cross-examine the witness remotely.
Provides Security and Confidentiality
With respect to NAM virtual ADR conferences and hearings through Zoom, all audio, video and screen sharing data is encrypted. In order to accomplish this, NAM's videoconference platform through Zoom has specific settings that are provisioned/configured differently than the generally available Zoom commercial account. In addition, NAM's customized videoconference technology through Zoom now meets or exceeds the privacy and security specifications provided by The Health Insurance Portability and Accountability Act (HIPAA).
Further, in contrast to virtual meetings that are open to the public, NAM's IT Department monitors each virtual hearing and is readily available to assist at any time should the need arise. They also monitor the meeting rooms ensuring that only authorized participants are present. Every hearing is unique and separate from others by utilizing case specific dial-in numbers. In addition, each mediation/arbitration is password protected. Confidentiality is of the utmost importance.
Summary
The increased use of video ADR has now become a necessity for counsel seeking to resolve disputes. As indicated above, when this crisis does end and people have experienced its ease of use and efficiency, I believe it will be utilized at a far greater level than it had been, prior to our current situation. Productivity will increase as companies will be able to save on travel time and the expense of sending their employees to the location of the mediation. In addition, attorneys, clients, corporate representatives and insurance company examiners, will not have to leave their offices to attend an arbitration or mediation and can focus more of their time on running their business. Some of you may still be skeptical and hesitant to use video ADR, however, there is no downside. I urge you to speak to colleagues who have used it and then take the leap and try it for yourself!
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Hon. Larry S. Shachner (Ret.) 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 is a retired Justice of the Supreme Court, Bronx County, and served on the bench for nearly 20 years. In 2019, for the second year in a row, Judge Schachner was voted a Top Ten Arbitrator by New York Law Journal Best Of Survey. He was also named a National Law Journal 2018 Alternative Dispute Resolution Champion, as part of a select group of only 46 nationwide and was rated “Highly Qualified” by the New York State Independent Judicial Election Qualifications Commission.
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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