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The Pendulum Has Swung

by Don Cripe

December 2021

Don Cripe
We are firmly ensconced in what some call the “digital age.” CAMS has been providing ADR services on virtual platforms (our preference has been Zoom) for almost two years at the time this is being written. We have completed hundreds of mediations and arbitrations. Our experience is that when counsel, the parties, and the mediator are all prepared (which requires an emotional/intellectual acceptance of the process), virtual ADR (classically referred to as ODR or Online Dispute Resolution), for most cases the process is every bit as effective as in-person. Attorneys, and some litigants of my generation and before, are most resistant to the process. I grew up in a small agricultural community in the Midwest. My parents’ generation still relied on horses and horse drawn vehicles and machinery. Horse & buggy rigs were a regular sight on our highways. My father said many times when I was a kid that horses were more dependable and safer than automobiles, so he wanted to regress into the past. He never addressed the fact that his travel to and from work would lengthen his time away from home tremendously. We know the nostalgia was misplaced. As with every new or different process, once one overcomes the “status quo bias,” the new process can be accepted. Among ADR providers, it seems the following considerations are universally recommended.

Clients/litigants are almost always very sensitive to the cost of their cases. After all, why spend $10 for a $5 return? Let’s say the office of counsel is an hour’s drive away from the ADR facility and the billing policy of the firm requires time billed from departure to return, so the client is billed 2 hours for travel and if traffic or travel is congested or restricted, 2 hours may grow to 4 hours rapidly. If the firm charges for mileage and passes on parking and other travel related fees, under this hypothetical set of facts, other than counsel’s actual time in the mediation session, how much will the client be charged? If counsel cooperates with the idea of efficient virtual ADR, the above costs are eliminated and, with rare exception, late-starts are avoided since attendees do not usually have to adjust for uncontrollable circumstances, such as traffic tie ups and the like, let alone the misery of parking in congested business areas. The clients can avoid the stresses of traffic, finding addresses in unfamiliar areas and the emotional intimidation that is commonly associated with attending such events in professional offices. The client walks from one room in her home or office to another and sits at her own computer, or much of the time clients select local counsel to represent them so even if they travel to their attorney’s office, they are still in familiar surroundings close to home. Emotional Intelligence (E.Q.) tells us that less stress on decision makers enhances the effectiveness of mediation. On-Line Dispute resolution reduces costs and safes time, energy and reduces stress.

If the ADR session is conducted at the offices of counsel, some of the above disadvantages are reduced, but along with the possible additional expenses the ADR provider may impose, an ADR professional is not immune from the unfortunate travel complications that often arise, particularly in highly populated areas such as Southern California. We submit that your ADR professional convening your process in a calm, collected and relatively non-stressed state of mind also adds to the effectiveness of the process.

At least in California, the State Bar frowns upon the practice of double billing (i.e., performing tasks for other clients while billing another for their matter). Certainly, the very technology that allows for virtual ADR, might allow counsel to answer email and do other tasks remotely while the mediation is in process. But when clients are present (in-person) while that is being done, they may question counsel’s attentiveness to their situation and needs, particularly when the next billing hits their mailbox. Assuming counsel keeps appropriate time keeping records, being in his office makes attending to the day-to-day office activities and dealing with emergent or urgent situations far more practical. The time one spends idly in a conference room waiting for the mediator to finish with the other side may be better utilized if counsel is in her office. ODR is simply more time efficient and economical than In-Person sessions.

When I was a kid and a bit resistant to mathematical concepts, I struggled with algebra to the extent that I rejected every explanation while not acknowledging how it applied to my everyday existence, though without the name. As indicated above, we are in a digital age. I suggest that, with vanishingly rare exception, the lives of most 21st century lawyers are managed and even enhanced by digital technology. I still have a challenging time adapting to a new computer or cell phone, but once I get it, I don’t want to go back to the old system. My colleague, Susan Nauss Exon, has been an advocate and teacher of ODR for many years. She continually pressed me to teach about it and incorporate it into my curriculum when I taught my mediation students. I pushed back, insisting it would never replace the in-person experience. Then the COVID “shut-downs” affected the entire legal system. For a short while I was in turmoil until Susan and other of my CAMS colleagues caught on to the on-line platforms. We shared information, instruction, and experiences. Some of our first Zoom adventures were tentative and clumsy, but within a few sessions we discovered the ease and efficiency of the process. Even this old dog could learn. Despite my reluctance, survival in this complicated time forced me to adapt and I am very happy I did.

So, what does this mean to the recalcitrant lawyer when it comes to ODR resistance? It means preparation and adaptation.

When a law firm needs a copier or additional phone line and set up, it finds a way to make them appear so the office can run more efficiently. For the same reason, law firms, insurance agencies and adjusting companies, risk managers and similar, should be prepared and willing to make the relatively modest investment to prepare technically for the digital age, including having in house facilities for ODR. Though a very high percentage of Americans have computers and internet capability, there are still some who do not, so we suggest counsel have adequate facilities to accommodate ODR, including a basic computer with internet capability; an internet connection with a minimum 200 mb speed (the slower the speed, the worse your connection); a good, high-definition camera and high-quality microphone compatible with your computer. If counsel is not comfortable with the technology, someone from the office should get familiar with the Zoom (or selected platform) platform, experiment with the process, make practice sessions with friends, colleagues and family to see how the process works. Frequently your ADR provider will provide short instructional sessions for counsel and the parties to help them with the process and to familiarize them with the software. Every time it is used, it is easier for the user. (Note: Murphy’s Law—when something can go wrong, it usually will go wrong—technical problems will occur from time to time but are usually caused by the individual settings the users make in the software.)

We also recommend counsel who are unfamiliar with the selected platform to use it for communication other than the ADR process, i.e., communicating with opposing counsel, meetings, calls to colleagues, etc. You will find the software to be friendly and easy to learn.

Mediation trainers and mediators urge participants in mediation to be as prepared as they would be for trial. We suggest this includes technical preparation. If the client is unsophisticated, ask your mediator or his staff to help with instruction and guidance. As with most technical processes, familiarity helps self confidence which is the key to technical success.

Just as with every process we learn as we grow in our profession, there are growing pains. If we are willing to learn and adapt to the growing needs of our profession, we will conquer the process.

We have covered the practical aspects and the high points of the technical. Now, how do we prepare the human factors? This is not difficult but may be more complicated than the technical.

In some American Courts and many European legal systems, on-line processes are in common use. Where they are used, it took the cooperation and, even where begrudging, cooperation of practitioners to get on board with the process. Particularly given the increasing case volumes and limited resources of our systems, we will rely upon virtual law increasingly and it is predicted that where it is common practice, the situation is beyond the point of no return. It is also predicted that before most practicing lawyers in 2021 reach retirement, most of our courts will demand on-line processes. Moreover, ADR providers are defaulting to ODR in most cases. One international panel of an organization with which we practice, has been using ODR primarily for all international cases, mostly for economic and logistical reasons, for many years. That provider reports efficiency and efficacy at least as good, and certainly less expensive, than the past in-person processes. But it has taken time and patience.

Referring back to the old saw of “preparation,” we have further recommendations and observations.

Body Language. Most who object to the virtual process complain that the impact of body language, including facial expression is lost. If the technical aspects are properly prepared, this objection is without merit. Unless special arrangement of the video equipment is made, it is true that participants usually can only see the torso and head of the speaker. Statistics insist that about 55% of human communication is oral with visual falling into the 38% range (the last 7% comes from word choice). Consequently, most of the visual feedback attainable in virtual processes (depending upon the technical quality) is equal to or better than in person, if only because our “personal space” sensitivities are not offended. If the video devices are high definition and the lighting adequate, attendees of virtual ADR receive the benefit of technology and the speaker can enjoy the comfort of familiar surroundings. I can personally relate many stories of reading the facial expressions of disputants during video mediations. For me, they have been much more effective than in person because of the technology involved.

Currently, most public venues, like court houses and even private offices demand mask protocols. Aside from the general inconvenience of masking, masks impede the speech of the speaker and interfere with the ability of the listeners to clearly hear what is being said. And those of us who are a little older than most with poor hearing have a very difficult time in this situation. Further, at least for me, seeing the face of the speaker allows us all some ability to match the mouth movements to the sounds uttered, thereby adding to the clarity of the spoken word. ODR, depending upon the facilities, may eliminate the need or desire for masking during sessions thereby reducing this disadvantage to wearing face masks. It also allows the listener(s) to get a better view of the facial expression(s) of all participants, without potential health concerns.

Some are concerned with privacy and confidentiality. We agree this is a valid concern. However, if we look at the possible circumstances at issue, it is easily accommodated. On-Line mediation allows the mediator to create individual, private conference rooms for every attendee. The host, usually the mediator, can arrange the participants as desired. Commonly we place a party in a room with her own lawyer and, if desired, maybe a moral support person. (Arbitrations are handled a little differently, but it is not complicated). Since the host can control the process, interruptions by additional persons are uncommon. Also, we must remember that the party (litigant) to the process owns their own dispute, it is up to them to decide if a moral support person is trustworthy enough to guarantee the confidentiality of the mediation process (which is different than the broader concept of confidentiality in general). Counsel may also control the environment for their sides of the dispute by choosing who is allowed and who is not. As such, in stead of having a bailiff managing the attendees, it is closer to home.

We have all experienced dogs barking in the background, various background noises and the occasional 2- or 4-legged intruder. Background noise is a common interference no matter if in person or remote. In fact, the entire process of ODR has more control since unless the noise is in the background of the person speaking, the source can be muted thereby eliminating the distraction.

Intruders present more personal problems. A parent caring for a child or someone in need may face this difficulty acutely. It should be no more of a problem, and probably less, than if that person had to attend a session outside their locale. The entire process is inconvenient for the parties, but counsel should prepare their clients for every situation. As such, this problem is best and most effectively handled by counsel and the clients.

In short, please do not project the manageable problems counsel and parties might experience onto this highly effective and efficient process.

Now we look at cyber-security. We suggest that this is not an issue for the overwhelming majority of matters and is certainly no more of a concern than almost any court process or even in person ADR. The situation begs the question, “Who, aside from the litigants, really cares about your dispute?” There is no dispute that personal, often confidential material, is discussed in arbitration or mediation. Practically speaking, how often is such material valuable enough for a “hacker” to go to the time, trouble, and expense to break into your dispute on one given day to obtain tidbits of information. Could it be that the invasion of information in banks and credit providers during which thousands, perhaps millions of data bits with a potential value of billions of dollars, has created unrealistic concerns for those of us who employ the internet to conduct business? We suggest also, that on any given day, the ODR sessions count in the millions. For your case to pique enough interest in a villain somewhere in cyberspace to harvest a date of birth, that villain would have to have been made aware of enough information about the session to give him an idea where to hack. Only one of the parties would have enough information available to give to someone else. It is true that random attacks occur but lightening strikes somewhere in the world more than every second of every day. It is likely a party will be struck by lightening than to suffer a hacker in an ODR matter. Further reducing the possibility of hacking, the on-line platforms are updating their software more than daily with protections and detection. We suggest the vulnerability of this process to hacking attempts is negligible, at worst.

On-Line Dispute Resolution is here and, according to research, is growing and here to stay. We have heard statistics that 75% of individual providers have no desire to retreat to pre-pandemic practices. We have also seen information that consumers of our services prefer the on-line environment to in-person, for many of the reasons discussed above. Just as with almost anything, there will be some, a minority, of ADR consumers who will resist or refuse the ODR process. But just as happened with my grandparents and their horses, those who resist will become fewer as time passes.

We hope the information provided in this article will help those resistant to ODR to reconsider and move into the age of technical advantage. We hope also, our advice and guidance for making the ODR process more effective and efficient for everyone will be well taken.

Donald Cripe is a Law Professor (Mediation/ADR), Univ. of La Verne College of Law; Superior Court Judicial Arbitrator since 1996—having conducted several hundred arbitrations; Settlement Judge since 1996; Family Law Mediator-Riverside Superior Court Mandatory Dispute Resolution Conference Program; General Mediator-Dispute Resolution Services, Riverside; Civil Mediator- Riverside County Superior Court; Riverside Superior Court Mediation Panel; Inland Valleys Justice Center’s Mediation Panel. Have conducted in excess of 3000 mediations on a wide variety of matters, including most of which have been indentified in my professional experience section. I conduct Fee Arbitrations for the Riverside County Bar Assn. I have also been on the Panel of Independent Arbitrators for Kaiser Health Plans and am a Guest Lecturer for Family Law Mediation Students at the Loma Linda University Graduate School of Psyc. Final stages of being accepted to the panel of Arbitrators & Mediators for the American Arbitration Association. Arbitrator and Mediator for the American Health Lawyers Association. 1996-Present: Judicial Arbitrator1996-2001: Settlement Judge (acting) San Bernardino Fam Ct 1999-Present: Mediator Riverside DRS 1999-Present: Mediator Riverside Sup. Ct 2003-Present: Mediator: Riverside Fam Court 2006-Present: Special Master, Riverside Sup, Ct 2009-Present: Mediation Panel-Riverside Sup. Ct 2009-Present: Mediator/Arbitrator for IVJC 2009-2011: Kaiser Independent Arbitrator 2011-Present: Am Arb Ass'n: Mediator/Arbitrator 2012-Present: Am Health Lawyers Ass'n: Mediator/Arbitrator.


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