Alternative Dispute Resolution and The Coronavirus
Unfortunately, safe practices with the ongoing Covid-19 pandemic make the conduct of in-person mediations and arbitration hearings impractical.
We have been conducting a full calendar of effective mediations via Zoom technology since March. We have just conducted several completely remote arbitration hearings with positive feedback from all participants and believe the current crisis will bring positive change to how our clients are served.
Through at least January 1, 2021, all of our mediations will be conducted remotely through the Zoom platform.
Likewise, arbitrations, discovery referee and general reference hearings will also be remote.
We are working with our clients in contested hearing cases to develop individualized case plans for effective and manageable hearings. Case planning includes assuring access to necessary technology for all participants, planning for exhibit exchange and use during hearings, assuring the availability of private “virtual spaces” (Zoom “breakout rooms”) for party use during hearings, and discussing and resolving issues concerning the integrity of the process.
Our goal is to meet our obligations to our community while continuing, to the best of our ability and with your cooperation, to provide excellent alternative dispute resolution services to our clients.
A Word About Security
We take the security and confidentiality of our mediations and conferences very seriously.
There has been a lot of news and speculation about the security of Zoom video conferences. The reported hackings all involve large group meetings with published schedules.
For our Zoom meetings:
- Each conference and mediation is given a unique meeting number and password.
- All participants first go to a waiting room and are only connected to the meeting manually by the host on verification of identity.
- All capacity to record a session or chat between participants outside a breakout room is disabled.
These steps avoid all reported issues with Zoom
Use of the Zoom platform technology is easy, confidential and secure. We will provide an email link to all session participants before the hearing that will enable access to the Zoom platform from any device with Internet access and audio and video capacity or by telephone if that technology is not available. Activating the link will take the participants to the secure virtual mediation site.
Counsel will need to provide us with email addresses for all participants.
The Zoom platform allows us to organize and assign separate virtual Breakout Rooms for each of the parties so that private caucuses can be held at the outset or during the mediations and contested hearings. No matter where a party team member is at the time of a session, the group will have the ability to communicate together privately in their separate virtual Breakout Room.
We will be available before the sessions to answer any questions or address concerns from either you or your clients.
20 years ago I had the privilege of being a mediator/Special Master any large multiparty coordinated action. To streamline the process, we were among the first to utilize cloud-based discovery exchange, document storage and case communications. There was much skepticism back then. Now eDiscovery and cloud-based document storage and case communication is the norm. With many years of mediation experience and many cases under my belt involving remote communication, I am confident the challenge we face to maintain safe social distance in this time of crisis will provide an opportunity for us to improve the efficiency and effectiveness of what we do for our clients.
What You Can Do
I have three suggestions for counsel to help make the virtual mediation process more effective:
- Be sure that there is some exchange of mediation briefs between the parties prior to the mediation. If there is additional information which needs to be kept confidential, provide that to the mediator separately.
- Provide your mediation statement and any confidential information at least two days in advance of the mediation. While the Zoom platform makes provision to display documents in a separate window, wherever possible, provide any supporting documentation in advance as well.
- Be sure that clients and other participants are well acquainted with the nature of the mediation process and that they are expecting and prepared for virtual participation.
Arbitrations and Other Matters
Arbitrations, Discovery Referee and other ancillary Alternative Dispute Resolution procedures provide unique challenges that can be dealt with on a case-by-case basis. Our experience so far is that remotely conducted contested matters can be fair, effective and efficient. We will consult with you on how to move forward to provide an appropriate forum to you and your clients in your case.
Thank you for your cooperation as we face this challenge together. We remain open to your suggestions on how to move forward and look forward to working with you in the future.
Richard L. Gilbert