Should We Switch to Multiple Shorter, Staggered Mediation Sessions Online?

Thought provoking article from mediator Frank Burke:

“Most civil and commercial private mediators and ADR providers offer their clients a binary choice between a half day mediation and a full day mediation as a standard offering, often on a flat rate with one or two hours of prep time, a preliminary call with counsel and open ended follow up as part of the flat fee. Most such mediations are convened and organized to have all the parties and counsel arrive at the same time. Since the onset of the pandemic and the various shut down orders, the use of online dispute resolution has increased exponentially, usually conducted through videoconferencing using Zoom and similar platforms. 

This broad use of videoconferencing around the world has lead to a phenomenon referred to as Zoom fatigue (see https://ideas.ted.com/zoom-fatigue-is-real-heres-why-video-calls-are-so-draining/). Psychologists attribute this fatigue to the higher levels of concentration caused by staring at a computer screen for long periods, often looking at multiple images of participants on the screen, leading to eye strain and sensory overload. All of this is exacerbated in mediation, given the emotions caused by conflict and the high levels of interactivity between the mediator and the parties as they move through trust building into often difficult conversations to bridge the gaps between parties. Given the medium, mediators must also be thinking about eye contact and reading facial expressions, which is second nature in a face to face conversation but which takes effort in a videoconference. Exhausted mediators and parties cannot do their best work. Good, durable settlements and settlement agreements require careful attention…”

Read more: https://www.mediate.com/articles/Burke_Shorter_Sessions.cfm

ODR goes live in more Michigan counties

Taylor Worsham, writing on July 9, 2020 in The Sault News:

‘The Michigan Supreme Court Office of Dispute Resolution recently announced the availability of its completely free MI-Resolve online dispute resolution tool in Chippewa, Luce and Mackinac counties.

MI-Resolve provides an efficient and accessible way of resolving disputes that are typically filed as small claims, general civil or landlord-tenant cases in the district court. Michigan is the first state to have an online dispute resolution system for every citizen in the state.

“Keeping the virtual doors of justice open to everyone in Michigan has never been more important,” said Chief Justice Bridget M. McCormack. “Confronting the COVID-19 crisis makes closing the justice gap all the more urgent. Opening up online dispute resolution to Chippewa, Luce, and Mackinac county residents represents a huge step toward achieving that goal.”’

Read more here

NCTDR stands in solidarity against state brutality and calls for further tech innovation for racial equality and other human rights

During the global COVID-19 pandemic, and at a time when social distancing is required to save lives, technology has been vital to human connection. This turn in society has forced even the most reluctant practitioners and overburdened institutions to rely on technology to assist in the handling of disputes. Suddenly, online dispute resolution is at the forefront of conversations about providing access to justice and repair of human relationships from courts to alternative dispute resolution. The National Center for Technology and Dispute Resolution, birthplace of online dispute resolution over twenty years ago, is enthusiastic about this upsurge in its use. And as we stand in solidarity against state brutality, we think it now more important than ever for all of us to work for racial equality and all forms of human rights, further innovating the use of technology in the name of access to justice for all.

Catalyzing Online Dispute Resolution (ODR) in India

Over last weekend there was a very high level meeting of leaders in the justice sector to discuss the future of ODR in India, convened by Agami and Omidyar Network. From the press release on the meeting:

“In a first, NITI Aayog, in association with Agami and Omidyar Network India, brought together key stakeholders in a virtual meeting on 6 June 2020 for advancing online dispute resolution in India.

ODR is the resolution of disputes, particularly small- and medium-value cases, using digital technology and techniques of alternate dispute resolution (ADR), such as negotiation, mediation, and arbitration. While courts are becoming digitized through the efforts of the judiciary, more effective, scalable, and collaborative mechanisms of containment and resolution are urgently needed. ODR can help resolve disputes efficiently and affordably.

Senior judges of the Supreme Court, secretaries from key government ministries, leaders of industry, legal experts, and general counsels of leading enterprises, explored the opportunities and specifics of what lies ahead.

The common theme was a multi-stakeholder agreement to work collaboratively to ensure efforts are taken to scale online dispute resolution in India.

In his welcome address, NITI Aayog CEO Amitabh Kant said, ‘This historic meeting is the start of a collaborative exercise that sets into motion the use of technology towards efficient and affordable access to justice in our post-pandemic response.’

Justice DY Chandrachud, speaking on technology and access to justice, remarked, ‘Above all there needs to be a fundamental change in the mindset—look upon dispute resolution not as relatable to a place, namely a court, where justice is “administered” but as a service that is availed of.’

Stressing on the need of ODR during the ongoing Covid-19 pandemic, Justice Sanjay Kishan Kaul said, ‘Let us target Covid-related disputes first [through ODR] because those are people who would like for their disputes to be resolved quickly, particularly in this context. This is an important part of economic revival.’

Justice Indu Malhotra spoke of the nuanced specifics that could be considered for scaling ODR. ‘Making ODR or ADR voluntary may defeat the purpose. It should be made mandatory [for specified categories], and it should cover about three [sessions] so that parties don’t feel that it’s a mere formality.’

Justice (Retd) A.K. Sikri brought forth the advantages of ODR—convenient, accurate, time-saving, and cost-saving.

Anoop Kumar Mendiratta, Law Secretary, Government of India, articulated that, ‘Private ODR and ADR providers need to be complemented to ensure that online resolution can reach different industries, locations, and parts of the country and also support the public institutions in a big way. The government is open-minded.’

Nandan Nilekani, Non-Executive Chairman of Infosys, gave his vision for justice delivery. ‘The future will be a hybrid model that combines the best of both worlds—offline courts, online courts and ODR. We will have to reimagine the whole process of justice delivery to work in the hybrid system and this will require good data…’”

Read more here:
https://pib.gov.in/PressReleasePage.aspx?PRID=1630080

Impressive CRT May Satisfaction Survey Results

Wow — there are some impressive stats!

May 2020 British Columbia Civil Resolution Tribunal Participant Satisfaction Survey results are up at https://civilresolutionbc.ca/participant-satisfaction-survey-may-2020/… — some of the highlights:

100% felt the CRT treated them fairly

96% felt CRT staff were professional

92% felt their CRT dispute was handled in a timely manner

94% would recommend the CRT

Well done, Shannon and team! You can view the full report at
https://civilresolutionbc.ca/participant-satisfaction-survey-may-2020/

Moving to virtual mediation can be easy with the right preparation

Larry Axelrood in the Chicago Daily Law Bulletin:

“…Regardless of how life unfolds post-COVID-19, remote working will be a significant part of lawyers’ professional lives. Whereas in-person mediations have traditionally been the most effective, remote mediations are now a solidly viable option. Most likely, a blend of live and remote participation will become more common. As expected, lawyers have found a way to continue to advocate and fight for their clients, and mediators are ready to facilitate and expedite that process.”

Read more:
https://www.chicagolawbulletin.com/axelrood-kitchen-table-mediation-6-2-20-20200602?MvBriefArticleId=2983

ODR: The Next Leap Forward?

Excerpt from a new article from Rachael Bicknell for the law Law Society of Scotland Journal:

“ODR combines ADR processes, technology and impartial independent experts. It is recognised internationally as a specialised and highly effective form of ADR. Its origins date back to the 1990s when it was created to resolve disputes resulting from online transactions and interactions between parties in different jurisdictions. In 2013, Lord Neuberger, then President of the Supreme Court, said in a speech on Judges and Policy: “We may well have something to learn from online dispute resolution on eBay and elsewhere.” The eBay Resolution Center now handles over 60 million disputes each year, while courts have been slow to adopt online or hearing-free models.

All methods of exploring the resolution of a dispute with the assistance of technology are ODR. It can involve advanced technologies and processes such as machine learning, artificial intelligence and cognitive computing which are being developed and promoted to resolve specific types of disputes. More importantly for the practice of law, it is the movement online of face-to-face mediation, arbitration and other resolution processes, using videoconferencing combined with secure onboarding, e-signing of agreements, document sharing and online communication, to deliver fair, proportionate and effective redress for commercial and civil disputes.”

Read the full article here:
https://www.lawscot.org.uk/members/journal/issues/vol-65-issue-05/odr-the-next-leap-forward/

Hong Kong’s COVID-19 ODR Scheme

From the announcement page on Hong Kong’s new ODR program for low value disputes:

“In view of the severe economic repercussions caused by the COVID-19 pandemic globally and locally, the Government announced another package of measures to support the affected individuals and businesses last Wednesday. Two of which are particularly relevant to the legal and dispute resolution sector – LawTech Fund and COVID-19 Online Dispute Resolution (ODR) Scheme. The LawTech Fund was briefly introduced in this blog a few days ago (https://www.doj.gov.hk/eng/public/blog/20200411_blog1.html). Today, I would like to give an outline of the COVID-19 ODR.

In anticipation of an upsurge of disputes arising from or relating to COVID-19, the Scheme aims to provide speedy and cost-effective means to resolve such disputes, especially for those involving micro, small and medium-sized enterprises (MSMEs) that may be adversely affected or hard hit by the pandemic. The Scheme will engage eBRAM to provide ODR services to the general public and businesses, in particular MSMEs, involved in low value disputes…

It is a global trend to develop and use ODR to provide reliable and efficient platform to facilitate alternative dispute resolution. The Scheme is in line with the development under Asia-Pacific Economic Cooperation’s Collaborative Framework on ODR (APEC Framework), with MSMEs as the major beneficiary. The mechanism of adopting negotiation and mediation in the first stage under the APEC Framework is also to prevent entrenched views on the conflicts, thereby helping to create harmony in society.”

Read more:
https://www.doj.gov.hk/eng/public/blog/20200413_blog1.html

New Op-Ed by Richard Susskind on FT.com

Richard Susskind wrote a powerful column for the Financial Times on the move to online courts. An excerpt:

“…the main reason for the digital transformation of court service is unrelated to Covid-19. Rather, court systems around the world are largely broken. According to the OECD, more than 4bn people live beyond the protection of lawyers, the law and courts. In some countries, the backlog is staggering: some 80m cases in Brazil and 30m in India. Even in advanced legal systems, the process is generally only understandable to lawyers, is too expensive for most and civil cases take far too long. There is an acute problem of access to justice. Hardly anyone, anywhere, can afford to take legal action through public courts. It is increasingly unaffordable for large businesses too. Many practices and procedures are arcane in today’s digital societies.

I have little doubt that technology can provide a sustainable set of solutions. But we have to deploy the right systems. Many technology advocates believe greater efficiency can be achieved by automating and streamlining conventional court work. Although well-intentioned, this approach is misguided. It will deliver mess-for-less, rather than a transformed public dispute system fit for the 21st century. Grafting technology on to processes that can date as far back as 900 years is not the answer.

The challenge instead is to develop systems that deliver court services in ways that were previously impossible or even unimaginable. The point is not to computerise current practices. The great power of technology lies in transformation, not in automation.”

Read the full piece here (subscription required):
https://www.ft.com/content/fb955fb0-8f79-11ea-bc44-dbf6756c871a

ODR Update from China

NCTDR Fellow Michael (Xuhui) Fang has shared a short update paper on the status of ODR in China. Many of us saw the law.com article describing the ways China is pushing ODR as it recovers from the pandemic, but Michael’s piece offers more inside background (as well as photos) on the advances taking place. From his paper:

‘In sum, the Supreme People’s Court is not unrealistic to issue the “Notice Regarding Online Litigation Amid the Coronavirus Battle”. The Supreme People’s Court understands that “Rome was not built in a day.” The reality is that the Chinese courts had used information and communication technology (ICT) as the fourth party to resolve the disputes long before coronavirus outbreak began in China. The spread of coronavirus has forced the Chinese courts to take full advantage of ICT across the country. Not only the three internet courts in Hangzhou,Beijing and Guangzhou but also other Chinese courts have moved trials online. As illustrated above, two people’s courts at the county level and one higher people’s courts at the provincial level applied remote trials to prevent “justice delayed” amid the epidemic. As we know, the face to face process has the risk of spreading coronavirus, violating the quarantine and isolation rule. Therefore, ODR becomes “Only Dispute Resolution” to avoid “justice delayed” in the Chinese court amid COVID-19 Battle. There is no choice.’

Read more: http://odr.info/files/china.pdf