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Law360 (April 21, 2020, 3:44 PM EDT) --
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| Suzanne Rab |
This time of urgent need is also an opportunity to combat notions that the legal justice system is behind the times by taking quantum steps toward alternative dispute resolution delivered through virtual technology. There are two ways in which this could be achieved.
Firstly, claims emerging directly from the COVID-19-related disruption could automatically be referred to a presumptive mediation program where mediation is the default option. This will alleviate the burden on an already overstretched court system and may be expected to lead to a greater number of settlements.
Secondly, given that social distancing measures seem to be here to stay at least for the foreseeable future, the platform should provide for mediation through virtual communication technology.
Adopting this approach, the current crisis may be seen as a catalyst to drive fundamental shifts in cultural and societal outlooks on dispute resolution and normalize ADR methods such as mediation. ADR-friendly systems created as a result of the crisis can act to improve access to justice well beyond the pandemic's lifetime.
The inevitable onslaught of coronavirus-related disputes can be used to test the benefits and limitations of more flexible models of mediation that obviate the need for face-to-face meetings and that have long been the subject of debate and proposal. It is a truism that a crisis can force a shift in behavior in ways previously thought unimaginable.
While the current courtroom paralysis makes more traditional forms of dispute resolution the exception rather than the norm, we might now see a shift in the other direction to a situation of presumptive virtual ADR as the default option. Presumptive mediation has previously been used in other jurisdictions where a spike in claims threatened to overrun the courts.
In the aftermath of Superstorm Sandy in 2012, thousands of insurance claims flooded the New York courts as losses to homeowners and businesses piled up.[1] As is the case with the current pandemic, insurance policies that were previously neglected and perhaps barely understood were used to reclaim losses they usually did not cover. In order to deal with the overflow, a mediation program[2] for home and business owners, along the same pattern as successful mediation programs for Hurricane Katrina[3] and Rita[4], was established.
A similar surge in insurance claims (among others) in the U.K. can be expected to emerge from the coronavirus outbreak and lockdown. It is foreseeable that many of the claims issued will not be settled. It is difficult to assess the magnitude of damages caused by the pandemic and to what extent they will be covered by insurance.
Furthermore, first-time claimants under a policy can be liable to provide incorrect or incomplete documentation for their claims, further stalling the process. We can therefore expect thousands of unhappy insurance claimants clamoring for a form of dispute resolution soon.
Introducing a presumptive virtual mediation program to deal with the onslaught could be key to relieving courts of this burden and achieving timely and cost-effective settlements. Emergency regulation could be introduced for insurers to pay for all mediations as was done after Superstorm Sandy. Private mediation providers can be onboarded to provide the critical mass of mediators to deal with the numbers expected.
An additional consideration is that as the impact of the pandemic deepens, the power imbalance between claimants and insurers is skewed further. For most claimants, litigation is not an economically viable option. There is also an information asymmetry in that the insurer will also have superior knowledge of the terms and be aware of any loopholes therein. Mediation can offset this imbalance due to its reconciliatory nature in seeking to create a new equilibrium between the disputing parties.
A mediation program also benefits the insurers. Mass insurance claims dealing with a common issue on the part of a dispersed and disorganized population of claimants can be a strain even on large insurers in the current circumstances. A swift and cost-effective mechanism for resolving disputes is therefore a mutually beneficial approach for all parties involved.
It should also be noted that the expansion of mediation and ADR in general is long overdue within our justice system. It has often been lamented that voluntary mediation was not embraced by the legal profession or general public as was hoped after the ADR reforms in the Civil Procedure Rules.[5] This is in spite of persistent judicial[6] and academic[7] encouragement, public information initiatives such as pilot programs[8] and pre-action protocols.[9] The Civil Justice Council's ADR Working Group report[10] as much as admitted this frustration and endorsed a more presumptive form of mediation (i.e., mediation would be pursued as a default position prior to litigation).
Recommendation 20(a) specifically captured the gist: there is effectively a presumption that ADR will be attempted in any case which is not otherwise settled. The "presumption" of ADR — in effect an opt-out scheme rather than the currently optimistic opt-in one — has not been realized. While there remain concerns about the capacity of the courts to deal with even those disputes that are suitable for online resolution, the real life experiment we are living may also force this presumption to become real — by necessity rather than design.
One potential perceived obstacle to a presumptive virtual mediation program is its virtual element. Although online hearings over Zoom and Skype are being conducted on a daily basis, virtual mediation may be considered challenging or impracticable as physical interaction is key to the mediation process. As a barrister and mediator, I can testify to the importance of nonverbal cues when seeking to understand a party's motivations and where they may not be telling me the whole truth.
My own reservations about the use of virtual mediation were brought to the fore in my role as a mediation trainer with dispute resolution provider Phoenix Dispute Solutions.[11] The pandemic prompted a real-life decision about how to deliver a week-long mediation accreditation course due for its next presentation at the height of the expected peak in the U.K. How far would it be possible to recreate a real-life mediation scenario in a virtual setting?
Face-to-face interaction allows the mediator to read the parties' body language, facial expressions and general demeanor to inform his or her approach during crucial parts of the process. A mediation also includes individual meetings with the parties before they are ready for a plenary session.
Simulating reality through technology further posed questions of ensuring audio and video quality over long duration calls, as well as security. Not exactly a techno-luddite, having used video-conferencing widely in my professional life, I still had some concerns. My fears were misplaced, however, as the software solution, a simple integration of an online class management system and Zoom video-conferencing technology, replicated all the essential elements of a face-to-face-mediation.
Tools such as breakout rooms and mute functions, which are available on most leading video conference platforms, make virtual mediation no less efficient than its in-person form. The result — we can train new mediators just as effectively now as we were doing six months ago — and we can reach them wherever they are.
Of course, a pervasive (dis)belief that virtual communication can provide an adequate alternative to in-person interaction means that mediators and advisers need to work overtime not only to counter skepticism among users and promote the use of virtual mediation but also to familiarize themselves with the technology. There is no better time to do this than when there is an unavoidable shift toward virtual communication in all professions, which will certainly help the cause.
Mediators should look to become tech-savvy in their own approach if they are to realize the potential of this means of communication and opportunity to further legitimize their art. The mediation team should create jargon-free software user guides with instructions and technical specs for all parties involved and hold pre-mediation sessions to test and demonstrate the software. The usual mediation structure of pre-mediation sessions followed by the mediation day (or days) can be applied to virtual mediation. But it will require an added layer of preparation to overcome any technical apprehension.
Conclusion
The case for presumptive mediation, where attempts at ADR are the norm rather than the exception, is stronger now more than ever. The pandemic is inevitably going to further reveal what we already know: Litigation by default is incapable of providing cheap, timely and accessible justice to the majority of private individuals and businesses.
Not all disputes will be amenable to ADR but mediation's long-desired normalization can be promoted with the innovative use of virtual technology. In the future we may see some longer term benefits because we now have to reset how we function and interact. Virtual mediation comes "just in time," rather than "just in case" we need it.
Suzanne Rab is a barrister at Serle Court.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.thebalance.com/hurricane-sandy-damage-facts-3305501.
[2] https://www.nyed.uscourts.gov/hurricane-sandy-mediation-program.
[3] https://www.mid.ms.gov/preparedness/hurricane-katrina.aspx#MediationProgram.
[4] https://www.irmi.com/articles/expert-commentary/hurricanes-katrina-and-rita-effect-on-claims-handling-procedures.
[5] http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01#1.4.
[6] https://mediate.co.uk/case-law/thakkar-v-patel-2017/.
[7] http://disputeresolutionblog.practicallaw.com/alternative-dispute-resolution-versus-having-your-day-in-court-another-round-to-adr/.
[8] https://www.gov.uk/government/news/regional-mediation-pilot-scheme-launched.
[9] http://www.justice.gov.uk/courts/procedure-rules/civil/protocol.
[10] https://www.judiciary.uk/wp-content/uploads/2018/12/CJC-ADRWG-Report-FINAL-Dec-2018.pdf.
[11] https://phoenixdisputesolutions.com/mediation-training/virtual-mediation-training-programme.
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