Observations in Online Dispute Resolution as COVID-19 Spreads
As millions of people across the world isolate themselves to avoid contracting and spreading COVID-19 to others (here’s guidance to stay safe from the CDC), the impact is especially felt in the alternative dispute resolution (ADR) community. I’ve spoken to dozens of arbitrators and mediators after I launched a free resource to learn about Zoom. It’s important I share these concepts with everyone to prepare for what’s ahead and keep the ADR community moving.
Prepare Your Parties
As a mediator and arbitrator, you should know how to operate Zoom or your preferred online resolution tool (check out CREK). For Zoom, a reliable and easy-to-use video teleconference service, there are plenty of free resources provided by Zoom’s helpful tutorials (also check out Resources for Legal Slack group created by Lori Gonzalez). While you may be prepared, are your parties ready? How competent are your clients in using Zoom?
As you master these online tools, considering the ability of your clients is critical. Clients may cancel your scheduled mediation or arbitration due to embarrassment, uncertainty, or not understanding how to use Zoom. As an ADR professional, you should explain and convince them to move online. This can happen in numerous ways:
- Host “refresher” trainings for 30 minutes (host it yourself or have a tech consultant run it)
- Arrange a 10–15 minute orientation session with the parties to ensure their audio and video is functioning
- Provide reasons why Zoom is secure and safe (encryption, privacy, etc.) and explain it is not perfect (no guarantee of recording, etc.)
- Note that Zoom is not the only platform — resolving a case over the phone or another platform could be considered
ODR is not Rocket Science
When you begin mediating or arbitrating online, it doesn’t require sophisticated knowledge. ODR is simply another tool in the toolkit (I’ve said this for years but not as long as people like Leah Wing, Colin Rule, Ethan Katsh, and Amy Schmitz). When you incorporate Zoom into your practice, you don’t have to do everything over Zoom — do what’s comfortable. This means incorporating text, email, and phone calls as appropriate and following ethics guidelines. If you can wrap up the end of a landlord and tenant conflict on the phone, do it. If you need to collaboratively create the mediation settlement or have over 15 people on the line, consider Zoom. Keep it simple.
Practice, Practice, Practice
Similar to most things in life, practice using these new tools. Instead of calling a colleague or your partner, set up a quick Zoom call and let these tools become a daily habit, similar to you walking between breakout rooms at your JAMS or AAA office. Find another ADR practitioner and do a co-mediation with them on Zoom. There are multiple ways to practice — don’t stop doing it.
I write about innovation in legal tech and online dispute resolution. I’m the founder of multiple legal tech startups, served on The State Bar of California’s Task Force on Access Through Innovation of Legal Services (ATILS), and an online mediation practice in San Francisco. Please email me if you have questions or feedback.
