Virtual ADR Is Here To Stay

NAM (National Arbitration and Mediation)
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NAM (National Arbitration and Mediation)

We are now all faced with the reality of social distancing, constant hand washing, flattening the curve, business closures, and the tragic public health consequences of the coronavirus. As we all try to adapt to the new normal, I am thankful that technology has allowed me to continue working while adhering to the government regulations. As a Mediator, I had been trained on the use of videoconferencing, and to some extent teleconferencing, early on in my career and occasionally used it where a party participating in mediation could not appear in person. Now, with the new reality, videoconferencing is fully operational and enabling us to continue to provide seamless ADR services. I have always been wary of utilizing new technology. Well, I am here to tell you it is quite easy to use, even if you are technically challenged like myself.

I am a former Supreme Court Justice and had been in the court system for almost 30 years. I was used to the court’s bureaucracy grinding along at a glacial pace, unable to adapt to change. As I write this, the courts in the New York metropolitan area remain closed regarding all civil matters, with only limited processes being put into place for certain court functions. Obviously, this makes it very difficult for many firms to continue their normal operations. If justice was slow to be dispensed via the court system up until now, it is unimaginable how the backlog will be overcome once the courts do reopen.

Videoconferencing gives attorneys the ability to continue working remotely, serve the best interests of their clients by moving cases forward and permits them to resolve disputes without waiting indefinitely for the courts to reopen. It appears evident that when life does return to normal, the use of videoconferencing will expand further and become commonplace, as companies realize that they can be present at a mediation or arbitration without needing to travel to the location and lose an entire workday or more.

Since the coronavirus crisis began, I have presided over many videoconferenced mediations and arbitrations. The feedback that I have received has been extremely positive across the board. Bottom line - videoconferencing a mediation or arbitration is as effective as any in-person ADR setting.

How does it work?

The nuts and bolts of it are quite simple; you only need a computer with a camera, mobile phone or iPad to access an internet connection to download the free ZOOM application. Once you are logged on to ZOOM, just follow the simple instructions to “Join the Meeting.” The Mediator will be the host. And just as in an in-person mediation, everyone will start out together in one “room” and the parties are able to see and talk to each other. Exhibits can be shown to the mediator and the other parties. Then, each side will be separated into their own “breakout room,” with absolute privacy while you are in your own private virtual room. The Mediator can enter the breakout room to discuss each side’s position privately and conduct virtual shuttle diplomacy to resolve the case.

In arbitration, the witnesses can be present with their attorney or testify from their own location. Demonstrative evidence can be utilized and viewed by all parties. Opposing counsel will then be able to cross-examine the witness remotely.

Provides Security and Confidentiality

With respect to virtual ADR conferences and hearings through Zoom, all audio, video and screen sharing data is encrypted. In order to accomplish this, the videoconference platform through Zoom has specific settings that are provisioned/configured differently than the generally available Zoom commercial account. In addition, NAM’s (National Arbitration and Mediation) customized videoconference technology through Zoom now meets or exceeds the privacy and security specifications provided by The Health Insurance Portability and Accountability Act (HIPAA). Further, every hearing is unique and separate from others by utilizing case specific dial-in numbers. In addition, each mediation/arbitration is password protected. Confidentiality is of the utmost importance.

Summary

The increased use of video ADR has now become a necessity for counsel seeking to resolve disputes. As indicated above, when this crisis does end and people have experienced its ease of use and efficiency, I believe it will be utilized at a far greater level than it had been, prior to our current situation. Productivity will increase as companies will be able to save on travel time and the expense of sending their employees to the location of the mediation. In addition, attorneys, clients, corporate representatives and insurance company examiners, will not have to leave their offices to attend an arbitration or mediation and can focus more of their time on running their business. Some of you may still be skeptical and hesitant to use video ADR, however, there is no downside. I urge you to speak to colleagues who have used it and then take the leap and try it for yourself!

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