The court system is geographically limited and stuck in traditional methods of dealing with people’s disputes. For centuries, the expectation has been that judges work at a court house, and parties with a dispute must attend in person at the court house to have their matters dealt with – often multiple times, at different steps along the way. Until the recent Covid-19 pandemic, even something as simple as filing documents electronically at a court house, instead of in person, was wishful thinking.
The court system does not accommodate people’s needs for procedural flexibility. Court rules and processes are primarily aimed at making things easier for judges to manage their time and allocate judicial resources efficiently, instead of being designed for the convenience of the parties the court is (in theory) supposed to be serving.
Mediation and private Arbitration are not geographically restricted in that manner. Because private dispute resolution can adjust and customize its approach to fit the dispute and needs of the parties, mediators have been ahead of the courts for many years in their ability to use available technology more effectively.
ZOOM, for instance, is an easily downloaded app that many people have become familiar with during the Covid-19 pandemic. It can operate on any smart phone or tablet with a WiFi connection, to conduct meetings by video. Microsoft Teams is another app particularly popular among users who are already using the Office 365 software platform. There are other software applications that also perform in a similar way.
We have the ability to host one-on-one video meetings, group video meetings and separate breakout video “rooms” for private discussions, all online, in a manner similar to meeting face to face at a common location. This can save on travel time and expense and make the benefits of mediation or arbitration available to people who are limited in their ability to travel to a court house.
Document briefs and memoranda can be sent to the mediator/arbitrator electronically as well, eliminating the need to bind and ship piles of paper to the other side, or file them with a court office. The mediator can also meet with people separately, by remote means such as telephone, video and email, and shuttle back and forth in individual caucus discussions with each party to a dispute, to assist them in moving toward a resolution.
THINGS TO KEEP IN MIND
• Not everyone has access to sufficient internet bandwidth to be able to participate effectively in online video meetings, particularly in rural and underserved areas.
• People have different levels of comfort with technology and may prefer to meet in person. There is a learning curve involved, so it’s not appropriate for everyone, but should be kept in mind as an available option.
• More preparation is required in advance, before conducting a video meeting, to ensure that everyone understands the ground rules clearly, has appropriate expectations and knows how to operate and manage their end of the technology, and that all necessary documents have been exchanged in advance.
• Conducting video meetings tends to be a bit more cumbersome and time-consuming than meeting face-to-face, in person, so the process can take a bit longer and require more sessions. That additional cost created by that increased time should be balanced against the convenience of not having to travel to a common meeting site.