VIRTUAL ADR: LIFE AFTER LOCKDOWN
by Hon. Melvin L. Schweitzer (Ret.) | May 2021
With vaccinations on the rise—and our spirits with them– there is increasing talk of returning to the office, probably after Labor Day, to resume a somewhat normal work schedule, including renewed person-to-person contact with our colleagues.
In the Alternate Dispute Resolution (ADR) profession —arbitration and mediation – technology has played an indispensable part of our work lives this past year – the open question is: what role will it play in the future? In every way, the word “virtual” has become an integral part of our vocabulary. In ADR it has become part of our lives.
Over this past year, virtual or digital conferenced mediations and arbitration hearings probably represent one of the fastest and most successful transitions in any of the professions, notwithstanding that we have had to lead our initially reluctant clients to the trough.
First, all readers should recognize that the entire ADR field originated only some 30 years ago and has experienced its explosive growth during this relatively short period of time. Since its inception, over 150 countries throughout the world have adopted this form of conflict resolution.
So, as we think back to March of last year, when most of us first became fully aware of Covid-19 and its ramifications for our well-being and what it would mean for our work and social lives, we should recall how quickly ADR providers like NAM (National Arbitration and Mediation), recognized that the backdrop of our profession – the “in-person” meeting, conference and hearing – would not be available to us. The remaining questions were, for how long and what to do about it?
The Advent of the “Virtual”
At a recent webinar, a discussion about the future of virtual ADR was front and center. ADR providers had the foresight to act immediately. Within a matter of two to four weeks the “service” side of our profession had tapped into the available technology. Platforms such as Zoom, and others, “break-out rooms,” chats, exhibit loading and sharing, all became part of our ADR vocabulary. Along with them came new rules, guides, protocols and on-line payment systems. Providers trained staff to act as technology “trouble shooters” and to oversee mediation sessions and hearings. And, of course, we mediators and arbitrators also had to quickly become proficient with the technology. The proud watchwords of what was accomplished are “quick” and “seamless” to describe the transition to the new platform. The technology was there to be tapped and it surely was.
Yet after all the preparation and associated costs, ADR encountered the old joke “what if you gave a party and nobody came?” For at the beginning of this transition some neutrals experienced hesitancy and skepticism from those we serve. Mediators and arbitrators attending the webinar, including this writer, recounted how the parties in all of our scheduled mediations and hearings immediately sought successive adjournments in the hope that things would be back to normal by the end of last spring. It was not until then that clients finally were willing to try the virtual platform, lest they be left waiting for a truly unpredictable length of time.
Virtual IS Here to Stay
So now that we are past the one-year mark, where are we? Start with this amazing fact: within this past year literally thousands of virtual arbitration hearings and mediation sessions have been conducted around the world. The Zoom platform garnered very favorable satisfaction for both arbitrations and mediations.
In many respects, a skillful neutral can use the technology to bring the “personal” to Zoom. For example, it can be valuable to start a session by going around the table and having each participant introduce themselves, i.e., where they live, their families, what they do, what role they play in the proceeding, etc. In mediations, where the neutral is encountering resistance from a party, a separate meeting in a separate breakout room can be directed at softening up the individual, making him or her feel more at ease, or exploring in greater detail what their concerns are. This also can lead to mediator suggestions of possible to ways to break a deadlock.
Other benefits of a virtual mediation or arbitration are that the Zoom screen enhances one's ability to be more intellectually focused and thus enhances one's ability to think things through. The convenience of not having to travel also can bring more voices and talent around the virtual negotiating table, such as the presence of insurance adjusters, or people from abroad who are no longer required to fly in for a half-day hearing. Consider construction cases, for example – a participant can appear right from their construction trailer when needed, without losing days of work. We should also be mindful that for young people that have entered the ADR field, their familiarity with technology and solo work is their way of life.
And though digital conferencing will certainly be part of ADR's future, the benefits of in-person hearings were also presented. In fact, the lunch break or as some call it the “intensity break” -– especially in mediations – afforded the parties and their counsel to mosey up to one another and build a social rapport that often can lead to a breakthrough in negotiations.
Arbitration vs. Mediation: A “Virtual” Dichotomy
As we look ahead to the fall, all ADR providers and neutrals at the webinar agreed the views of our clients will guide us in defining the future. For example, in mediations, where clients are business executives, their response throughout the pandemic has been laser focused on the pragmatic. They want to settle as soon as possible. Their attitude is ‘life is too short so let's get on with it.' That equates with pragmatism and cost efficiency. And that means “virtual” technology.
In arbitrations, on the other hand, where there can be protracted discovery disputes, clients have exhibited some hesitancy to go “virtual” and many may want to tell their stories in person. Arbitrators, too, appear to be favorable to return to ‘in person' hearings, primarily because of their desire to establish rapport with their colleagues on arbitration panels whom they do not know and with whom they must collaborate.
A “Hybrid” Future?
There is increasing talk in the arbitration space about “hybrid” proceedings: conduct pre-hearing proceedings virtually to acquire more knowledge of the documents and reduce them to “core” documents for the hearing itself. Also, conducting virtual hearings in smaller bites is a useful tool in large arbitrations with multiple parties – especially with multi-state, out-of-state, or international components. One of the international providers at the webinar predicted that virtual proceedings would comprise 25 percent of all international ADR.
Similarly, in mediations, the preliminaries such as establishing a schedule for the exchange of Mediation Statements and documents, setting a date for the mediation and establishing an initial rapport with the neutral can be conducted virtually. In light of this past year's experience, query whether ADR phone calls will have become passé? And for those clients that still wish to opt for in-person mediation, virtual hybrid preliminaries may precede a physical return to the negotiating table.
Ethics
The webinar also posed a number of ethical questions such as: In a hybrid arbitration with some virtual and some in-person evidentiary hearings, e.g. abroad – does a party that objects to a virtual hearing have a right to force an entirely in-person proceeding? That certainly is worth a look.
Conclusion
There was little doubt among those at this comprehensive webinar that “virtual” is here to stay, both because it works and because it is cost-effective. It appears to be significantly more popular among mediation users than for arbitrations – although there may be room for hybrid usage in the latter, both as a matter of efficiency and cost. Ultimately it will be our clients that dictate the directions we will take. But one thing is certain: our ADR community can be very proud of what has been accomplished over this most challenging past year, and we can be equally confident that, as we begin in earnest to look ahead to the Fall, all of us working together will be ready to meet the challenge.
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Hon. Melvin L. Schweitzer is a retired Acting Supreme Court Justice, New York County, Commercial Division. He is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases nationwide. Judge Schweitzer served on two New York State Courts for a period of ten years: Judge of the New York State Court of Claims, 1st District, where he presided over contract, negligence, construction and medical malpractice trials against the State and certain of its public authorities and public hospitals, and then Acting Justice of the Supreme Court, New York County (Commercial Division) hearing highly complex commercial cases Prior to his judicial service, Judge Schweitzer practiced law for more than 30 years as a Senior Partner for a prominent New York Law Firm, focusing on corporate and securities law, public finance and insurer insolvency. He also headed his own firm for five years focused on property and casualty insurer insolvency cases, international construction mediation and a multi-year, high profile accounting fraud case, before his appointment to the bench by the Governor and confirmation by the State Senate.
For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone 646-737-1414 ext.128.
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