The End Is Not Yet Nigh: Remote Dispute Resolution in the Age of COVID-19

It might be good if there was an inverse correlation between the frequency of household legislation disputes and the gravity of social crises, however, because of the peculiarities of human nature, such will not be the case. As Canada’s provincial and superior courts batten down the hatches, it’s essential to do not forget that environment friendly and efficient dispute decision options exist, and can be found even the place trial dates have been set. Greatest of all, in this time of social distancing, many of these options don’t require the members to be in the similar room at the similar time.

Mediation and arbitration can be utilized to resolve all or some of the points in a household legislation dispute, even when litigation is nicely underway. I’ve but to come across a decide, or learn a call, chastising litigants for endeavor mediation or arbitration in the midst of litigation besides in these uncommon circumstances the place a celebration failed to have interaction in mediation or arbitration in good religion or used these processes for a collateral function. Most of the time, the court docket is delighted when litigants attempt to resolve their disagreements on their very own… which in reality they do, provided that the price at which civil circumstances are resolved by trial is nicely underneath 5 %.

The frequent attribute that distinguishes mediation and arbitration from litigation is their flexibility. This enables processes and procedures to be designed that genuinely mirror the significance, worth and complexity of the points going through every household, and offers mediators and arbitrators with a good diploma of creativity in managing and resolving disputes; the solely important necessities for each roles are equity and neutrality, supplemented, for arbitrators, by the obligation to look at the ideas of pure justice.

This implies, amongst different issues, that mediation and arbitration needn’t at all times be carried out face-to-face. Whereas I’ve little question in any respect that in-person conferences and hearings usually work higher, holding conferences by teleconference and videoconference is a protected, efficient, and typically mandatory choice, particularly in these turbulent occasions.

Videoconferencing suits very neatly into my follow as a household legislation mediator, arbitrator and parenting coordinator. I run a genuinely paperless workplace, with paperwork being exchanged by e-mail or, in the case of very massive paperwork, by a safe consumer dropbox. (Whereas I can’t appear to completely cease individuals from bringing binders of tabbed reveals to arbitration hearings for some purpose, these paperwork are equally nicely offered to witnesses and myself in PDF type by pill or laptop computer. The incontrovertible fact that paperwork supplied in this manner may be searched is an incredible bonus.) The overwhelming majority of my preliminary conferences, together with pre-hearing conferences in arbitration information, are usually held on-line by video. Nevertheless, I routinely conduct mediation conferences and arbitration hearings remotely the place:

a) the events and their counsel stay in completely different cities, or in completely different provinces;

b) the events stay in rural or distant components of Alberta and British Columbia;

c) in mediation conferences, the animus between the events is such that their bodily separation improves the chance of success; and,

d) in arbitration hearings, proof is pointless or can largely be offered in written type.

I’m not at all alone in my use of know-how to offer out-of-court dispute decision providers. Aaron Franks and Herschel Fogelman in Ontario hear interim purposes and maintain conferences remotely, though Herschel has some reservations about the use of videoconferencing to listen to viva voce proof. In British Columbia, Craig Neville, Eugene Raponi and Karen Nordlinger additionally make routine use of distant applied sciences. Craig does a good quantity of his parenting coordination work by teleconference, whereas Eugene integrates videoconferencing into his in-person arbitration work to facilitate the cross-examination of consultants and the participation of out-of-town events. Wayne Barkauskas and I, in Alberta, make a maybe broader use of videoconferencing in our work as mediators, arbitrators and parenting coordinators, and are wholly content material to conduct hearings remotely, together with these requiring oral proof.

Eugene, Herschel and I share an inexpensive concern that distant conferences usually are not at all times as efficient as in-person processes. Nevertheless, “not as efficient” doesn’t imply that they’re ineffective. They’re efficient, though managing conferences and hearings remotely calls for extra effort on the half of the mediator or arbitrator to keep up their management of proceedings and be certain that all events are in a position to absolutely take part.

Expectations for the behaviour of events and counsel should be clearly articulated earlier than and at the starting of every convention or listening to. Individuals can’t be allowed to speak over one another. The mediator or arbitrator should be capable of include outbursts, and restrict interruptions and different disrespectful behaviour.

Events and counsel must be tactfully reminded to organize as totally for conferences and hearings held remotely as they might for conferences and hearings held in individual. The formality of the course of and the burden of proof usually are not degraded as a result of the members usually are not in the similar room.

The mediator or arbitrator should know the way their software program, and the extra performance out there to them as convention moderators, works. For purchasers and counsel who’re much less comfy with know-how, it could be useful to schedule a dry run to make sure all members are equally comfy with the software program and equally conversant with its functionalities.

Different useful ideas may be discovered in MediateBC’s very helpful handbook, Mediating from a Distance: Instructed Observe Pointers for Household Mediators.

Curiously, some of the options generally supplied by videoconference software program present a marked enchancment over conferences and hearings held in-person. Most platforms enable the mediator or arbitrator to mute members when mandatory, allow or disable person-to-person chat, create personal breakout rooms alongside the primary videoconference room, create digital whiteboards, and report conferences. Nevertheless, many may also be configured to permit members to:

a) show audio or video recordings;

b) immediately share information by the software; and,

c) share all or half of their laptop screens, a function that’s particularly useful when reviewing complicated paperwork.

As everyone knows, sanity doesn’t out of the blue get away between separated spouses or mother and father simply because the doorways of the courthouse are locked. Nevertheless, the finish of days will not be but nigh. Mediation and arbitration are smart, speedy and, as Karen factors out, cost-effective methods of resolving disputes, together with pressing issues, that will usually be handled in chambers or at trial. Bear in mind, nevertheless, that in this time of coronaviruses and self-isolation, mediation and arbitration additionally work at a distance. You probably have a household legislation dispute that may’t be heard, you owe it to your consumer to contemplate these options.

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Postscript: As I wrote this column, the following, eerily on-topic notice about consumer identification verification appeared in my inbox from the Regulation Society of British Columbia:

In distinctive circumstances the place attorneys unable to avail themselves of another verification technique, the Regulation Society will take an inexpensive method in its compliance exercise, if the lawyer verifies identification by utilizing video-conference know-how. Attorneys who confirm a consumer’s identification utilizing video convention know-how ought to be capable of display that they:

    • are fairly glad that the authorities issued identification is present and genuine;
    • have been in a position to examine the picture in the authorities issued identification with the consumer to be fairly glad that it’s the similar individual;
    • report (with the relevant date) the technique used to confirm the consumer’s identification;
    • deal with the transaction as a excessive threat transaction and proceed to watch the enterprise relationship as a excessive threat transaction; and
    • doc the efforts that have been made to confirm the consumer’s identification in accordance with the current guidelines and the explanation why they have been unable to confirm the consumer’s identification in accordance with the current guidelines.

The End Is Not Yet Nigh: Remote Dispute Resolution in the Age of COVID-19

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