Resolving Disputes Online During the COVID-19 Pandemic

In today’s climate, remote mediations are the rule rather than the exception, with technologically savvy mediators stepping in to provide parties a chance to settle their disputes online.

In addition to debilitating illness and the tragic loss of life, the COVID-19 pandemic has caused unprecedented court closures, trial calendar continuances, and interruptions in civil litigation on a global scale. As a result, parties must find ways to resolve their disputes other than in person.

The Online Dispute Resolution Subcommittee of the Alternative Dispute Resolution Committee works to educate brand owners, their counsel, and others in online mediation as an effective and efficient alternative to traditional mediation, where the mediator and parties are present in the same physical space. Here, they provide an overview of online mediation for resolving disputes during these challenging times.

Online mediation is conducted via the Internet using web-based technologies and platforms. Before the pandemic, remote mediations—that is, those not conducted in person—typically occurred only under limited scenarios, such as when the parties and their counsel were geographically remote from each other. In cases where the travel costs for the parties and/or mediator did not justify the effort, those mediations were usually conducted by telephone or video.

Reliability and security are essentials for an effective online mediation. With most law firms, businesses, and mediators presumably already set up to work remotely, the primary technical requirements for each mediation participant is an Internet-connected device (preferably Wi-Fi) with video and audio (microphone and speaker) capabilities. In terms of the mediator’s hosting of the mediation, services can be configured for multiple rooms (a “conference room” for all parties and separate “caucus/breakout rooms” for the individual parties).

As the host of such a meeting, the mediator can enable various functions to ensure the security and confidentiality required for a successful mediation:

1. When creating the meeting, the mediator should include two layers of security, namely (a) a password that each participant must enter when accessing the meeting; and (b) a waiting room function that will allow the mediator to “admit” participants into the meeting once they log in.
2. Either in advance of the online meeting, with the parties and counsel identified ahead of time, or at the commencement of the mediation, the mediator should create as many caucus/breakout rooms as will be needed (that is, one for the plaintiff and one for the defendant or, in the case of multiple defendants, one for each defendant). In addition to the party breakout rooms, the mediator may also want to create a separate, spare breakout room in case the need arises for the mediator to consult with the attorneys independent of their clients, or vice-versa. In terms of cost, a license may include additional pricing for additional rooms, so this factor may need consideration when creating breakout rooms.
3. As the host of the meeting, the mediator can control which participants can enter which breakout rooms, with the mediator/host obviously able to enter any room at any time. The chat function enables the mediator, as the host, to communicate with the breakout rooms and provide them information, such as “I am about to enter your breakout room,” “Please leave the breakout room and come to the general meeting room,” or “I need to speak with outside counsel for both parties in the side breakout room.” A participant, including the host, can only be present in one room at a time.
4. In the event an agreement is reached, a portion of the meeting can be recorded with the mediator reciting the agreed material terms and each party/counsel confirming acceptance of those terms on the record. Additionally, if the parties are able to document their agreement, as is always recommended, many online meeting services may include the ability to share documents and utilize electronic signing services to obtain a fully executed set of documents at the close of the mediation.

Online mediation is undoubtedly going to become the “new normal” for the foreseeable future and is an attractive option for anyone involved in civil disputes—from brand owners and their counsel looking to help their businesses focus on the issues at hand, to the courts looking to reduce case volume, and, of course, to mediators looking to expand their skillset. Even in a post‒COVID-19 environment, online mediation will continue to be an effective and efficient means of dispute resolution.

Although every effort has been made to verify the accuracy of items in this article, readers are urged to check independently on matters of specific concern or interest.

© 2020 International Trademark Association