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Alternative Dispute Resolution In A Virtual World

Technology has been changing everything, and ADR is no different.  As someone who has a primary residence in Michigan and a second home in Arizona, I have been struggling with scheduling mediations and arbitrations for the blocks of time I spend at my second home. In the past I would jam all my in- person ADR sessions in the months before leaving for Arizona and when I returned to Michigan. I have always conducted my pre hearing telephone conferences while was in Arizona without any problems, but I would schedule a short return trip to Michigan scheduling several successive days of mediation or an arbitration. However two things occurred which have changed that progression.

I returned to Michigan this past February to conduct a couple of mediations and a short arbitration. One of the mediations did not result in a settlement, but counsel and their clients agreed to arbitrate the case and chose me to continue and conduct the arbitration, i.e. a med/arb process. I then proceeded  to discuss the schedule, since I was not planning on returning to Michigan until the beginning of May, I offered several early May dates for the in- person hearings. Counsel and their clients did not want to wait that long, but still wanted me to conduct the arbitration. This was only a 3 day hearing, and I was not going to fly back to conduct it.

Because this matter was one in which very experienced experts were involved, I suggested that perhaps we could take advantage of the expert’s facilities and utilize modern technology to conduct the hearing in March. The parties agreed. So it was decided that counsel and their clients would convene at the offices of one of the expert witnesses, which also had in- house camera capability in their conference room, and I would attend remotely utilizing Zoom as the medium. This was the first time I have done this, although, I previously utilized this technology attending several de bene esse depositions in a large three person multi- state arbitration case in order to rule on objections that arose during the depositions. All exhibits and pre hearing briefs were sent to me in Arizona in advance of the hearing.  Counsel were experienced advocates and conducted themselves professionally throughout. It was not any different than if they were sitting face to face in my conference room. I was able to see the whole conference room, and monitor their behavior. We agreed to put the witnesses in a chair close to the camera, and the attorney doing the examination opposite the witness. Counsel switched chairs as necessary. It was no different than if I was in the room and not nearly 3,000 miles away. I was able to hear everything perfectly and ruled on evidentiary issues and had a chance to question the witnesses and counsel when and if I desired.

I was very surprised as to how well this went. I was also able to determine that even if the parties did not have a facility as this expert had, video graphic court reporters have the capability of utilizing anyone’s conference room as long as there is Wi-Fi capabilities for accessing the various software like Zoom or Conference. Com.  I know that this arrangement also works. I was deposed in a case as an expert witness while in Arizona and the examining attorneys were in a conference room in Michigan. I saw them and they saw me. The cost of this process was surprisingly moderate and whatever that cost is, it is offset by savings in arbitrator’s fees and is more efficient in scheduling. This technology can used even during a traditional in-person hearing. For example, an out of town witness will be able to testify live from their remote location. As a result of this experience, I will definitely use it again in order to conduct arbitration hearings and have modified my pre hearing order to allow for remote testimony.

But this is not the end of this story. The second event occurred when I used this technology in mediating a business contract dispute. In this case, one of the parties were situated in Texas and the other party in Michigan. I attended the mediation in the office of the local attorney. Before this experience, when I mediated cases, I preferred to see the parties and be in the same room with them. I have always thought that this way, the party, especially insurance adjusters, would have a more difficult time saying no to me. But this experience showed me that is not always the case. I was able to conduct private caucuses with the Texas party as if I were in the same room, and, as the saying goes, “I saw the whites of their eyes”. It was substantially better than talking on the phone. This case did settle. Since that time I have also learned that I could use the new technology by having each party shown on my computer separately. I can mute out one while talking to the other and vice versa. Or, I could combine them in a joint session. Thus, while using this technology, you would not have to travel to any other office.  It is clear that the savings in time and efficiency was significant and I was able to use that savings to get the parties to agree on a reasonable compromise. Utilizing this technology is not a “one size fits all” type of program. I generally arbitrate and mediate business and commercial types of disputes. These cases and their counsel and clients are currently more likely to be willing to utilize this new approach to ADR. 

Following this experience, I began to raise the possibility of using virtual techniques in all my pre hearing telephone conferences and early communications with ADR users. I can see that as the technology advances, and the millennials become the users of ADR, there will be a greater acceptance and opportunity to use this technology to conduct ADR processes. The use of social media has provided just the hint of the things to come and the changes in communication methodology we have yet to see. We as ADR providers should not be behind the curve. Be ready, try it, you will like it.

Reprinted with permission from the Detroit Legal News, June 26, 2019