Commercial Mediations in the World of Video Conferencing
The events that are transpiring are truly unprecedented and leave all of us anxious for the future. In the commercial litigation world: filing deadlines have been extended, Courts are currently restricted in their function, limitation periods suspended, and discovery deadlines effectively halted. In this environment, many are concerned about the impact on family, friends, clients, and businesses. Law firms have switched to remote working and mediation and arbitration centers have implemented video conferencing options. Many may choose to wait to see what happens before implementing alternative dispute resolution (ADR) strategies, while others may decide to negotiate directly without third party support. In addition, clients` objectives in litigation may currently be taking second place to their adjustment to a new working environment and other pressing issues.
At some stage, clients will evaluate the benefits and risks of leaving current disputes unresolved and seek certainty through the resolution of their litigation. All parties involved in disputes will have dynamics that impact their business objectives that did not exist before the Coronavirus struck.
Online Dispute Resolution
The widespread adoption of video conferencing and online solutions for remote working is equally feasible in the ADR environment, providing the best level of connectivity, absent in-person meetings. There are however, specific steps that the parties can take to enhance their clients` position and maximize the effectiveness in any video conference ADR setting. The usual niceties of in-person mediations can seem awkward on a video stream, and there is a preference to get straight to the issues at the center of the dispute- possibly truncating the timeline but also making information gathering harder to achieve in the mediation. This may seem efficient in a work environment where trust is already established, but where parties have been adverse to each other, often for quite some time, it can lead to inflexibility. It is all too easy to end a video conference, which in the context of ADR means the dispute continues for another day.
Maximizing Video Conferencing for ADR
For parties participating in mediations via video conferencing, the more information that can be shared and established before the mediation, the easier the video conferencing will be for that party. Mediators historically spend a lot of time seeking to develop key facts and issues which the parties can short circuit by providing more extensive pre-mediation briefs. Pre- mediation and arbitration briefs, served well before the hearing or mediation, will enable the mediator or arbitrator to focus on the issues earlier in the process and seek additional information and support for positions taken before the video conference takes place. This process enables the mediator or arbitrator to start the mediation process earlier, establish a working understanding of the parties` positions and objectives, and better prepare. For the parties, it allows them to focus in on areas that they may not have explored fully and ensures that when the ADR hearing takes place, they are better prepared and better placed to assess alternative views. This better preparation will enable the parties to overcome the shortcomings of a video conference and effectively represent their clients’ business objectives, whatever the setting or medium employed for resolution.
As a mediator and arbitrator at Miles, Nigel Wright handles extensive personal injury claims in disputes in over 50 countries and complex claims (including class actions) for A&H, Aviation, Casualty, Commercial Property, Construction defect, Crisis Management, Cybersecurity, D&O, E&O, Energy and Marine, Environmental, Financial Lines, Insurance coverage, IP, Pharma, Product defect, Professional Liability, Political Risk, and Surety.