Screen-to-screen mediation sticking around

When was the last time that you were in a reporting centre? If you close your eyes, it might feel like yesterday. The hustle and bustle of morning crowds dispersing to their respective rooms. The sound of reporters staying inconspicuous while moving about the floor doing important work. And, most of all, that sweet round-the-clock catering. Gourmet coffee, breakfast and lunch – all part of the deal.

In March 2020, all of that vanished practically overnight. The announcements of lockdowns meant that ADR (alternative dispute resolution) almost instantly became ODR - online dispute resolution. Mediators and arbitrators were instantly forced to familiarize themselves with Zoom logins, breakout sessions, and the amount of patience required until someone realized they were STILL on mute.

We’re now three years into the decade and have entered a relatively post-pandemic universe. COVID may never go away, but hopefully we are done with lockdowns once and for all. However, despite a recent practice direction from the courts, alternative dispute resolution has continued online largely unabated.

This then raises the question: is online ADR (or ODR) here to stay?

Why ODR works wonders

For many of us in the profession, the world of online dispute resolution was, as of 2020, entirely new. We may have experimented with it, or we may have had colleagues in our network who were dabbling in it in specific circumstances. However, by and large, we did the job we had always done - we showed up to sessions and hearings with our sleeves rolled up, comfortable shoes on, and ready to get to work.

Yet we often failed to realize that just because we showed up, it meant that others would have to show up as well. While having to be there for your client in person is a standard part of the job for counsel, showing up in person was not always easy for the parties themselves. Some individuals suffer from illness or infirmity, which does not make travel impossible, but it does make it challenging.

Others who were unfamiliar with the litigation process prior to their dispute were understandably nervous. Reporting centres are bustling places, as are busy law offices. A client unfamiliar with either environment, let alone the ADR process itself, may be easily frightened at a time where they’d be better served by being calm and relaxed. Being in a familiar environment can help ease some of those nerves.

The process is also usually much quicker and less intrusive. The need for bathroom breaks and long lunch breaks is minimized, and neutrals and adjudicators can control the clock with far more precision. Everyone is happier when the process runs more efficiently and a result can be reached quicker.

What the pros say

While I personally have had great success with online dispute resolution in my own practice, I also spoke with several of my colleagues in the field who have made the move to ADR to gather their thoughts.

Longtime mediator Barry Fisher, whose practice has moved almost exclusively online, said recently that one of the biggest advantages to moving into the online realm has been the cost savings. Along with a mediator’s actual costs, parties would “incur hotel or conference room charges between $500 and $1,000” along with usually expensive travel costs - none of which brought about any guarantee of settlement.

Fisher also notes that “relaxed participants make better decisions.” Employers are usually attending from their own offices and have access to information on hand versus having to continually phone back into the office for any additional information. Moreover, the ease of accessibility means that it’s easier to get the decision-maker to attend, often improving chances of a quicker settlement.

Another colleague, Bernard Morrow of Morrow Mediation, notes that 98 per cent of his practice has moved online, and that a recent hearing conducted in-person in Belleville, Ont., was actually “really nice to be together with people.” However, this does not change the fact that Borrow notes that most of his work since COVID started has been over Zoom. In his words, “the genie is out of the bottle.”

Morrow also notes that he and his colleagues were puzzled by the practice direction from the Ontario Superior Court in April 2022 welcoming the end of the pandemic and instructing mediations and discoveries to resume in person unless the parties consented.

“Even if the people are in dispute and the lawyers are at each other, I believe that they would work collaboratively and at least resolve the issue of venue,” said Morrow, adding that he imagined “the preferred venue would remain online remote video conference, and that’s in fact what’s happened.”

Morrow notes his settlement rate may even be higher since making the move virtually, and mediator and arbitrator Mitchell Rose of Rose Dispute Resolution agrees. “Despite what we believed pre-Covid, virtual participation is not only an effective replacement for in-person, but it is also preferable to in-person in most cases,” said Rose. “This is primarily due to cost and time savings, as well as convenience and comfort for everyone involved.”

Are there any drawbacks to resolving disputes online?

Despite what initial concerns may have existed about moving dispute resolution online, those appear to have been unfounded. For example, there was an initial concern that mediators would be unable to appropriately measure body language - those subtle cues that parties can give which may indicate true feelings beyond their own words. How could those be recognized on Zoom?

In fact, as Morrow noted, the opposite is true. A gallery view on a videoconference platform gives mediators the opportunity to monitor the behaviour of all parties at once, without having to dart their eyes rapidly in every direction of a boardroom. The view may not be full body, but the display of the collective in one place seems to offer a better vantage point.

Beyond that, the drawbacks seem miniscule if there are any at all. Counsel have become more comfortable working over video platforms, and parties are inherently more comfortable in a familiar space. While it may have been an adjustment for mediators and arbitrators themselves, most have long since recognized the benefits.

Final thoughts

In-person meetings and gatherings are obviously irreplaceable for certain purposes. The administration of justice through a full adjudicative process is best served in person. The old adage “justice must not only be done, but must also be seen to be done” remains compelling and suggests that a virtual adjudicative process can never be the complete answer. Trials and other hearings where the rights and obligations of parties will be determined, need to be in-person.

The mediation process is arguably different and, ultimately, the only consideration is whether or not deals are being reached. The anecdotal evidence appears to confirm this. Overall, online mediation does not appear less effective than meeting in person for most disputes. There may, however, be exceptions. For instance, where the documentary evidence is complicated, an in-person meeting may be helpful in clarifying a party’s position.

Parties should be flexible and give deliberate consideration to whether or not an in-person mediation is required. The choice of a litigant to meet in person should be respected and accommodated. It appears clear, however, that the presumptive choice for parties when selecting the mode of mediation is now online. For most disputes, it is simply more convenient and cost effective.

Rishi Bandhu is an employment lawyer in Oakville, Ont., advising employers and employees on all aspects of employment and labour law.