Courts are slowly reopening as more people are vaccinated against COVID-19, but most face an unprecedented backlog of cases. Criminal cases take precedence with many courts pushing out civil trials for a year or more. At the same time, civil disputes over employment, insurance coverage, and contracts have increased.
This has led to an uptick in the use of online dispute resolution (ODR) processes. ODR is a subset of alternative dispute resolution (ADR), in which matters are negotiated and settled outside the traditional court setting. ODR uses technologies that enable parties to meet and discuss issues without being physically present in the same room. It has enabled attorneys to move cases forward amid court closures and social distancing mandates.
However, practitioners face practical and ethical considerations when conducting ADR remotely. For ODR to be successful, lawyers must ensure they have the expertise and technology tools to serve their clients’ best interests.
Even before the pandemic, the use of ADR was on the rise. State and federal courts have long lacked the resources to handle rising caseloads. ADR allows parties to settle disputes more quickly and cost-efficiently than working through the court system. It also gives them greater control over the resolution process.
The two most common forms of ADR are mediation and arbitration.
- Mediation is less formal than court proceedings but still follows a process with distinct phases that are designed to help the parties reach a successful resolution. Mediators don’t have the authority to decide the outcome—they guide the parties through the process and point out the strengths and weaknesses of each side’s position.
- Arbitration more closely resembles a trial and is structured by more rigid rules. As an initial step, the parties must decide which arbitration forum they will use and that determines the procedures they will follow. The American Arbitration Association (AAA) and JAMS (formerly Judicial Arbitration and Mediation Services) are two popular ADR forums. Arbitration is binding on the parties, and the arbitrator has the authority to decide the outcome.
ADR Moves Online
Before the pandemic, lawyers would typically cancel a mediation or arbitration if it couldn’t be held in person. Many were skeptical that they could advocate for their clients if the parties weren’t in the same room. Personal interaction facilitates the mediation process, allowing the mediator to pick up on nonverbal cues and guide the parties toward resolution. Arbitrators, like judges, need the ability to observe and evaluate the credibility of witnesses.
However, those concerns have become less relevant with advances in virtual meeting technologies. Today’s video conferencing platforms can bring all parties into the same “room” where they offer testimony, present evidence, and examine witnesses. Breakout rooms enable mediators to separate the parties and have private conversations. The best platforms are intuitive to use, although practitioners would likely benefit from training and practice sessions.
Benefits of Online Dispute Resolution
Although ODR requires a somewhat different approach than traditional mediation and arbitration, it offers several benefits:
- Sessions can be scheduled with less lead time because there is no travel involved.
- Parties can participate from anywhere, which is particularly valuable for those who live outside the jurisdiction where the case is based.
- Sessions also tend to be shorter because participants are more focused on the process.
- The parties are not limited to “neutrals” (mediators in arbitrators) in the local area. They can choose a neutral with specific expertise in the type of case to be resolved, regardless of location.
- It’s also possible to involve health experts, financial experts, and other professionals, which typically isn’t possible with traditional ADR.
There are, of course, downsides. Not all parties will have access to virtual meeting technology or a reliable internet connection with sufficient bandwidth. Even those who have access may not be familiar with its use. Lawyers who use ODR must be sure these issues are addressed.
Ethical Obligations With ODR
Remote practice also imposes new ethical obligations on attorneys. In Formal Opinion 498, issued March 10, 2021, the American Bar Association (ABA) noted that lawyers must maintain client confidentiality when using video conferencing and other collaboration technologies.
When selecting a virtual meeting platform, attorneys should keep in mind that business-grade services generally provide greater security than free or consumer-grade options. The ABA also recommends that lawyers use strong passwords, install antivirus software, and keep systems and applications up-to-date. Encryption reduces the risk that sensitive data will be exposed.
Meeting links should be shared only with attendees, and attorneys should use the “virtual lobby” feature to control admittance. “Host-only” screen-sharing features can reduce the risk that attendees will share inappropriate materials.
Even with the right technology tools in place, lawyers must not forget basic precautions. Virtual meetings should be held where they cannot be seen or overheard by third parties to avoid risking confidentiality and attorney-client privilege.
Learn More About Legal Matters in a COVID-19 World
ODR has become more common due to the COVID-19 pandemic, proving its value to practitioners who may have been wary of it in the past. Because of its many benefits, ODR will remain a part of the legal landscape in the future. By conducting ADR virtually, attorneys can save their clients time and money, and resolve disputes more efficiently than working through the courts.
If you’d like to learn more about ADR, Concord Law School offers an individual course in ADR and Technology. Concord is the nation’s first fully online law school and part of the renowned Purdue University system.
Concord offers a number of insightful articles about navigating legal matters during COVID-19 and after the pandemic, including:
- Tips for Operating a Virtual Law Practice During the Pandemic
- 5 Privacy Issues Raised by the COVID-19 Crisis
- Can You Cancel a Contract Due to Coronavirus (COVID-19)?
- Overcoming Drone Delivery Regulations in the Time of COVID-19
- Telehealth and HIPAA During COVID-19: Security and Privacy Risks
For more information about attending law school online with Concord, reach out today.