October 27, 2020 Alternative Dispute Resolution

ODR in the Era of COVID-19

By Meredith McBride

The traditional theory on resolving a legal case, especially a family law case, is that if you can get everyone in a room together there is a greater chance that the case can be resolved. This is why many family law courts require parties present at every court appearance. There is a belief (whether true or misguided) that every time the parties are physically together, there is a chance that the case, or at least one facet of the case, could be settled. However, as a result of the COVID-19 pandemic, getting people together in a room is the last thing that many people want to do. As more and more courts are going virtual, so are dispute resolution options. Mediations are no longer being held in courthouses or offices, but instead people are turning to virtual platforms. Online dispute resolution (“ODR”) options have been available since the 1990’s but with advances in video conferencing technology as well as a greater need for remote options due to the ongoing pandemic, ODR is more popular than ever.

Online dispute resolution ("ODR") can be more time and cost efficient than traditional in-person dispute resolution.

Online dispute resolution ("ODR") can be more time and cost efficient than traditional in-person dispute resolution.

Credit: Anna Shvets via Pexels

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What Exactly is ODR?

ODR is the use of information and communications technology to help parties prevent, manage, and resolve disputes. That could mean utilizing software and apps (such as Our Family Wizard) to limit disputes between parties, the use of online forms and programs while working in-person to resolve a case or dispute, or, as this article will focus on, the use of online platforms such as Zoom or Microsoft Teams in order to conduct mediations or work through a collaborative divorce process without needing to meet in person.

Benefits of ODR

The benefits of ODR during the pandemic are fairly clear, you are able to continue to keep cases moving and seek to resolve them amicably while complying with CDC and local guidelines for social distancing and preventing the spread of COVID-19. However, there are further benefits to ODR that can be utilized when we are no longer dealing with the ongoing pandemic.

ODR allows people to participate from anywhere. This means that even if a party or attorney is travelling, the mediation can proceed and time does not need to be spent coordinating a time and location that is geographically desirable for all parties. This is especially useful where one of the parties does not live in the jurisdiction the case is based in. The ability to mediate a case while not physically together is also particularly helpful in cases that involve intimate partner violence.  There is a belief among many practitioners that cases that involve domestic violence should not be mediated. By taking away the need to mediate in person, some of the concerns regarding mediating cases with intimate partner violence go away.

ODR also means that you are not limited to local mediators. While there are obvious advantages to having mediators who are familiar with the jurisdiction that your case is in so that they can opine on possible outcomes should the case not resolve and they are familiar with each party’s rights in that particular jurisdiction, that is not truly the goal of family law mediation. The true goal of family law mediation is for the parties to work together to reach a plan and an agreement that works best for their family and their particular situation rather than the cookie cutter model of what each party could or could not get at trial. With ODR, you have the ability to seek out mediators from all over the country—or world. Perhaps there is a mediator that you heard speak at an ABA conference that would be perfect for a case you are working on, but the mediator lives halfway across the country. With ODR, you are no longer limited by geography and can seek out that mediator for your case.

ODR can be more time and cost efficient than traditional in-person dispute resolution. Not only does ODR save the time of travel to the mediator by allowing you and your client to conduct the mediation from the comfort of your office or homes, but it can also get rid of the significant downtime that occurs during in-person mediations. Many in person mediations include significant time where the mediator is speaking with one of the parties directly while the other party and his/her counsel sit in an office waiting their turn. While some of that separate office time is spent discussing how the mediation is going, potential terms, and resolving the case, most of the time ends up being small chat and looking at cell phones. By utilizing virtual mediations, when the mediator is in a separate virtual room with one party and attorney, the other party and attorney can discuss the case in a separate virtual room or can do separate work or household tasks while they wait for their turn. Similarly, for very complicated mediations, caucuses between the mediator and respective parties can be scheduled on different days or times so that the other party is not sitting around waiting their turn.

Virtual mediations do not need to be restricted by traditional business hours either. If the mediator, attorneys, and parties are on board, virtual mediations can be scheduled for off-hours or weekends.

The convenience of ODR also allows you to more easily incorporate other into the mediation. Where a typical mediation may only involve the parties, their attorneys and the mediator, a virtual mediation allows you to more easily add a team of people who can assist in resolving the case such as financial experts and mental health experts. Similarly, for cases where an interpreter is necessary, the convenience of virtual mediation makes it both easier to schedule an interpreter and in some cases, less costly.  

Issues to Consider

While there are many benefits to ODR, there are also some things to consider when doing virtual mediations. The first is to ensure that each party has equal access to technology. While the current climate is forcing many people to become more and more familiar with video conferencing platforms, some parties are not only not familiar with such platforms but also do not have computers with web cameras to fully utilize such platforms. There is a huge difference between having a computer with a high quality web camera that allows you to see everyone participating in a video mediation and using a cell phone where you only see video of the person speaking. Be sure that your client has sufficient technology to participate in the mediation or set your client up with a computer in a spare office or conference room in your office. Also, be sure to practice utilizing the video conferencing platform with your client so that you are sure he/she understands the program and is comfortable using it.

It is important to make sure that privacy is protected when conducting virtual mediations. All parties should ensure that the platform being used for the virtual mediation is secure. Many of the video conferencing platforms have options that enable the host of a meeting to require all attendees wait in a virtual waiting room until the host allows them to enter the video conference.  This feature should be enabled for virtual mediations to ensure that uninvited guests do not inadvertently join the virtual mediation.

Additionally, everyone participating in the mediation should ensure that it is being done from a place that ensure privacy. This should mean privacy from not only other people (such as children of the parties), but also electronic devices such as Google Home or Amazon’s Alexa which could inadvertently record the mediation.

Finally, the mediation should under no circumstances be recorded.

The popularity and necessity of utilizing ODR and virtual mediations is on the rise due to the ongoing COVID-19 pandemic, but there are many positive features of ODR that practitioners can take with them into the future of family law long after the COVID-19 pandemic is over. Provided that the proper precautions and preparation are taken, utilizing ODR is an important skill for family law practitioners to add to their toolbox.

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Meredith McBride

Esq., Darien, CT

Butler Tibbetts, LLC

ABA Section of Family Law Alternative Dispute Resolution Committee Co-Chair