Patrick J. Mahoney | JAMS
As the COVID-19 pandemic recedes, every aspect of our pre-pandemic ways of work is under review. Simply returning to our old ways is not the answer. To do so is to ignore the lessons learned while working remotely. Dispute resolution, like almost every aspect of society, changed as a consequence of the pandemic and what will remain is the extensive use of video. Why because it is less costly, efficient and effective.
COVID-19 thrust the legal community to work online. To the surprise of many lawyers, mediators, arbitrators and judges, the work continued to get done. Virtual hearings and mediations proved to be so successful that they are here to stay.
At the outset, one obstacle to conducting virtual hearings was learning how to operate in a virtual world, such as how to sign on to a virtual platform, upload and access documents and move participants between “rooms.” Security measures were enhanced to provide access only to the designated participants. In contested hearings, protocols were developed to preclude real time coaching of witnesses. Finally, adoption was slow until it became obvious that virtual hearings were essential to resolve disputes. Like riding a bike, once you learn, you do not forget.
What drove the acceptance was need. Courts were effectively closed for public hearings, and the convening of a jury was a rare event. The only way to address a legal dispute was virtually. Increasingly, legal professionals learned that the work could get done in a more efficient manner. For example, travel ceased to be an issue, which reduced costs and facilitated scheduling. Documents could be sent electronically to anyone at any time. Witnesses no longer had to sit and wait to be called; a simple text message could alert them when to sign on. Breakout rooms allowed parties and counsel to caucus in their own cyber room. Given that this process was not business as usual, lawyers learned to cooperate in scheduling and related aspects of a hearing.
However, there are lingering limitations. In mediations, personal contact can be critical in the final stages of a negotiation. The impromptu hallway conversations do not exist. Participants can simply sign off in frustration, and there is no opportunity to stop them at the elevator door. Distractions at participants’ locations can divert their attention, and participants are no longer sequestered in a single room mulling over the issues.
In-person contested hearings make it easier for the arbitrator to manage all the participants. Everything that is before a witness can be seen. The interactions between counsel and client are observable, which may not be the case in a virtual hearing. As a consequence, there is a perception that assessing credibility is enhanced by in person proceedings. An article by Judge Wayne Brazil, “Credibility Concerns About Virtual Arbitration Are Unfounded,” demonstrates that is not the case.
There are benefits of in-person proceedings, but I believe they are marginal in the overwhelming number of matters. The concerns about credibility or presenting evidence in a virtual hearing have not been borne out. The efficiencies of virtual hearings have driven their acceptance and continued use.