Alternative Dispute Resolution in a virtual world

prev
next

Martin Weisman

Well before the current pandemic crisis, I wrote an article entitled “Alternative Dispute Resolution in a Virtual World” published in the Legal News and reprinted with permission on the PREMI website (www. premiadr.com). Little did I know at the time it was written how prophetic this article was in light of what has happened around the world as the result of the COVID-19 pandemic. The text of that article follows with my update to help readers understand what I previously recommended and what could be recommended going forward.

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 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 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 for accessing software like Zoom or Conference.com.

I know 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 be 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.

The second event occurred when I used this technology in mediating a business contract dispute. In this case, one of the parties was situated in Texas, the other 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 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.

While using this technology, you would not have to travel to any other office. It is clear 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.

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 millennials become the users of ADR, there will be a greater acceptance and opportunity to use this technology. 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.

Update

Following the publication of this article last year, well before social distancing came into being, many of my PREMI colleagues contacted me for information on whether and how to use this new technology. In fact, PREMI itself obtained the ZOOM software so that PREMI professionals could conduct its meetings and PREMI professionals could avail themselves of this new technology.

My PREMI colleagues and I have now successfully conducted “online” mediations and/or arbitrations on many occasions and are trained in the use of the ZOOM software. PREMI and I continue to explore ways to effectively resolve your disputes in our current reality and have the ability and tools to conduct online video mediations and/or arbitrations.

As the Courts are closing and adjourning civil litigation matters and as we engage in “social distancing,” PREMI professionals seek to maintain a safe environment for themselves and their clients. PREMI members now have alternatives and options for litigators and clients to use resolving their disputes remotely. The use of online or video conferencing allows parties and counsel to negotiate from safe, confidential and geographically separate virtual conference rooms. The approach permits your PREMI mediator or arbitrator to engage in seamless and effective joint sessions, private meetings, caucuses, document sharing, and arbitration hearings by video conferencing, thereby eliminating the expense and risks of physical travel.

As I stated in my 2019 article, online video sessions can be as effective as “in person” meetings and your PREMI professionals and I are prepared to take on the responsibility to insure that would be so. Learn more about this option and how you can structure a safe environment to serve your needs in this difficult and challenging times by visiting the PREMI website at www.premiadr.com. Please stay safe.

—————

Martin Weisman has served as a neutral and party appointed arbitrator, mediator, and/or case evaluator in numerous commercial matters where claims were in the millions of dollars. These have included claims for breaches of many differing types of contracts, shareholders and/or partnership break-ups and/or oppression matters, fraudulent dealings, attorney and accounting malpractice, security disputes, purchase and sale disputes, commissions, real estate, construction, employment, automobile dealership and supplier issues, and merger and acquisition issues. These have been court and/or party appointed positions as well as AAA and/or PREMi matters. He has been named a Michigan Top Lawyer by dBusiness magazine each year since 2009, a Michigan Super Lawyer by Michigan Super Lawyers each year since 2007, a Martindale & Hubbard Preeminent and AV rated attorney, and served as the Chair of the Alternative Dispute Resolution Section of the State Bar of Michigan for 2014-2015 after serving on its Council for 7 years. Within the last year alone, Weisman served as sole arbitrator in a $108,000,000 employment case and as member of the three-person arbitration panel for a  $58,000,000 Medicare fraud matter. In addition, he successfully mediated an independent salesperson commission fraud case involving claims in excess of $34,000,000, and successfully mediated a $4,000,000 attorney malpractice claim among others. Designated as a mediator and as an arbitrator for the American Arbitration Association’s complex commercial panels, Weisman has also served extensively as an ADR trainer, lecturer and author.