ADR Solutions for a World Reordered By Pandemic - Remote Is Closer Than You Think

The clearest lesson of the pandemic is that we are all connected. Supply chains and the movement of goods and people by air, land and water mean we are all part of a huge interactive web.

Now, businesses around the world are trying to combat the multiple impacts of covid-19, economic peril and, in the USA, racial injustice. Just as the challenges and new issues mount, the courts have had to cope with slowdowns and lockdowns. In an astoundingly quick transition, ADR providers and neutrals have shifted focus to providing dispute resolution services remotely online. They have issued protocols and set up processes, and many online mediations and arbitrations have already been conducted to a positive reception by many prior sceptics. Delay and backlog do not have to hamper an economic recovery that depends in part on cost-effective and efficient dispute resolution taking place now. We knew that businesses with cross-border disputes would require better and less expensive ways to address both routine and bet-the-company disputes, but the need is not yet being fully met. Help is at hand. An arb-med-arb process resulting in a consent award is a solution to an expressed need and it can happen right now (even remotely) before the long process of approval wends its way to completion for the UN Convention on International Settlement Agreements resulting from Mediation (Singapore Convention).

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Getting to grips with online mediation

It is eight months since I first blogged about the impact that COVID-19 was having on dispute resolution in England in a piece aptly called, Adjudicating in the shadow of coronavirus. (I don’t know why, but that title always makes me think of Gabriel Garcia Marquez’s book, Love in the time of cholera. I’ve no idea why, other than the lyrical way the title sounds. Certainly, the stories are worlds apart… but I digress…)

That blog was written at the start of the first national lockdown and I followed it a few weeks later with a piece about the lessons I’d learnt in those first few weeks. By the time Jonathan came to write his October post, A few lessons I have learned from resolving disputes during the pandemic, I’d say we had become “old hands” at this on-line stuff.

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Virtual Mediations Are Fairly Effective

As numerous people within the legal profession know from firsthand experience, many court conferences, depositions, and mediations have been occurring remotely because of the COVID-19 pandemic. I have attended court conferences and depositions virtually throughout my career, since clients sometimes do not wish to pay travel time for such proceedings, and courts often permitted counsel to appear by remote means before the pandemic. However, I never participated in a virtual mediation prior to the pandemic, and I was extremely skeptical that they could be effective. Nevertheless, recent experiences have shown me that virtual mediations can be fruitful in the right circumstances.

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