I earned the designation of Master of Online Teaching from the University of Illinois in 2000. With 20 years of experience teaching online I have experience using every form or online communication invented, usually in its infant or beta form. During the same 20 years, I have successfully incorporated my education and my online teaching experiences into my Dispute Resolution practice.
Where others in this field are just beginning to provide services remotely, most reluctantly, I am a pioneer in delivering efficient and effective dispute resolution services remotely.
Remote mediation and arbitration will continue to grow as being even more “acceptable” than it was prior to 2020, especially in the coming months as businesses grapple with the backlog caused by the disruption of our court systems and a growing need to resolve disputes despite restrictions and hurdles for attorneys, parties, and witnesses meeting in person.
Covid-19 brought the Court system to a screeching stop in mid-March. Limited and restricted access to courthouses in the near future promises a severe and continued slow down. As a result, attorneys and their clients involved in litigation face unprecedented delays in having their disputes determined.
Many commercial disputes can be just as easily resolved remotely via mediation or arbitration, especially in a world in which everyone, from the youngest to oldest among, has now spent significant time living, working, and communicating “remotely”.
When talking about remote mediation or arbitration, we accept that the mediation or arbitration day, the negotiation or hearing, is simply carried out remotely instead of in person. Most other aspects of these processes were already carried out remotely and those expectations have not been affected by the pandemic.
There are significant benefits in holding mediations or arbitrations remotely. Sessions can be arranged more quickly and are accessible for all to attend, no matter where they are located. The cost and time of travel are eliminated. Experience shows that being physically in different places may help diffuse tension and animosity, leading to better opportunities for compromise. The mediation session is online tends to result in parties being more direct in getting to a solution as opposed to playing negotiating games that sometimes lead to a very long mediation day experienced when the parties meet in person. A remote Arbitration typically results in a better-planned pre-hearing and hearing process and an opportunity for a quicker turnaround in delivering the Arbitrator's decision.
There are a variety of online platforms, either used individually or in combination to facilitate and complete the mediation or arbitration, including Skype, Zoom, FaceTime, GoToMeeting, telephone, and/or email. The method utilized is subject to the agreement of the parties and largely dependent on the familiarity and access of the parties, but again, post vs. pre-COVID-19, this is less and less a concern.
As with any online interaction involving multiple participants, there is the potential for technical glitches. But logistics concerns seem to pop up unexpectedly in traditional face to face mediations and arbitrations all the time. It is suggested that everyone taking part is or becomes familiar with and knows how to use the chosen platform.
It is also recommended that the number of participants is kept to the essential minimum number of people. But again, these aren’t considerations that are new to effective mediations or arbitrations.
The parties will want to communicate privately during the mediation. They will also want to be able to communicate privately with their lawyers. In preparing for the mediation, parties will want to consider how this communication will take place and it is incumbent upon attorneys to prep their clients accordingly.
Confidentiality is absolutely vital. We always talk about and agree that the parties need to know that anything they reveal as part of the process will remain confidential and will not be disclosed to anyone else. I always discuss this topic as we get started, asking if the parties read the agreement and understand the provisions, and especially any provision regarding confidentiality.
For remote mediation and arbitration, the parties should agree that no one who is not named as a participant in the agreement shall have access to or be able to see or hear the process from the remote locations.
My practice is to request that they wear headphones and that they show me around the room to indicate that space is in fact secure and reasonably soundproof and that no other unauthorized persons are present in the space. Parties will also want to consider an express prohibition against recording the mediation and possibly the arbitration, although I have had requests that the arbitration is recorded.
The mediation agreement should provide specifics as to how any settlement agreement will be signed and completed. With the exception of increased use of an electronic signature, most of the other expectations, exchange of documents and logistics by way of email etc. were already common practice before COVID-19.
My fees for Mediation or Arbitration, Remote or otherwise, are simple and straightforward.
- A reasonable consultation fee to discuss my availability to serve as Mediator or Arbitrator.
- One reasonable and agreed to, per hour rate for post-consultation preparation, development of agreements, conferences, and communications prior to the hours/day(s) for mediation or arbitration.
- One reasonable and agreed to, per hour rate for the Mediation or Arbitration.