Patrick Brogan

Senior Editor, 2020-2021

The Novel Coronavirus (“COVID-19”) and subsequent government-mandated restrictions on in-person gatherings significantly impacted nearly every facet of our lives. Schools, hospitals, restaurants, and businesses were forced to either close or scale-back and operate in a manner unlike ever before. The world hit pause on social gatherings to slow the spread of COVID-19, which, in part, meant resorting to virtual meetings to conduct business, connect with friends and family, learn, and even resolve conflicts.

The virus also caused a number of new disputes to arise between parties due to its disruption on daily operations. Some broad categories of these disputes include business interruption insurance claims, force majeure disputes, residential and commercial lease disputes, and disputes over supply chain disruptions. ¹ Unfortunately, courts were not immune to COVID-19 and were subject to the same government-mandated restrictions, which resulted in the postponement of in-person hearings, a growing backlog of cases, and the implementation of virtual proceedings. With trial dates being pushed-out months and moratoriums placed on certain proceedings such as evictions, alternate dispute resolution (ADR) may be in a position to help decrease the courts backlog and aid in parties finding resolution through some of its already established virtual methods for resolving disputes.

Online dispute resolution (ODR), which is simply the conducting of ADR through the use technologies such as video conferencing, gives parties-in-conflict the opportunity to resolve disputes, often through mediation or arbitration, on an entirely virtual platform. ODR, relative to US courts in their current state, will likely save participants time and money, while also mitigating the risk of spreading COVID-19.

ADR organizations such as Judicial Arbitration and Mediation Services, Inc (“JAMS”) and American Arbitration Association (“AAA”) began promoting their online services years prior to COVID-19 and have since ramped up both their offering of online dispute resolution and the training of neutrals on conducting online hearings. ² Private companies, such as Tyler Technologies, offer ODR platforms in which parties can submit claims and negotiate settlements entirely online.

In response to COVID-19, the American Bar Association hosted an online program entitled: ODR in the Era of COVID-19: Experts Answer Your Questions. ³ During this program, a group of ODR experts, made up of two law professors and a Vice President of ODR at a technology company, discussed both the current state of ODR and the wide scope of disputes that can be resolved using an online platform. The group discussed the use of video conference websites such as Zoom to conduct hearings.

The panel praised Zoom’s features that can make conducting meetings extremely effective, such as breakout rooms, text chat, and screen share. However, the experts warned listeners to be aware of the potential drawbacks of online meetings. For example, mediators may lose their ability to pick up on nonverbal ques from participants, which they typically look for in order to guide the conversation. Further, security of the proceeding must be considered. Neutrals should take every measure possible to assure participants that the meeting will only be accessed by those with authorization. Participants will likely need to consent to conducting the hearing online via video conference and accept any risk to privacy that may arise.

COVID-19 forced people to adapt to a world with minimal social gathering. This meant conducting business, seeing loved ones, and resolving conflicts, online. The ADR industry adapted quickly to COVID-19 with the use of online technologies. Moving forward, it remains to be seen whether online dispute resolution becomes the “new normal” in ADR.