The COVID-19-driven transition to online mediation and arbitration has been nothing short of a revolution in the delivery of alternative dispute resolution (ADR). All of the major institutions—JAMS, the American Arbitration Association/ICDR, ICC, CPR, etc.—have issued guidelines and, in the case of arbitration, draft procedural orders for use by practitioners in connection with virtual hearings. This article distills various observations from a neutral into concise tips for commercial litigators participating in virtual arbitrations and mediations.
1. Virtual Mediations and Arbitrations Are Here to Stay
Virtual mediations and arbitrations will remain a significant part of the legal practice long after the pandemic is over.
First, initial concerns about confidentiality have been reduced as neutrals and participants have learned to put safeguards in place that ameliorate or eliminate many potential issues related to using remote platforms, such as careful attention to the use of passwords for Zoom meetings, disabling recording and chat functions, and other techniques.
Second, virtual mediation and arbitration, while not always perfect substitutes for in-person proceedings, work very well and even can provide advantages in many cases. For example, there is the unmistakable savings in time and cost by proceeding virtually. The enormous scheduling problems and expense associated with assembling everyone at a mediation or a hearing in one location are significantly reduced (and time zone and “Zoom fatigue” challenges can be managed with shorter, more flexible hearing or mediation days that include multiple breaks). The relative ease and cost-effectiveness of virtual proceedings also encourages more participants, and this is particularly noticeable in business mediations, where more stakeholders from the business often are able to participate live, leading to more efficient and comprehensive agreements.