Videoconferencing: The Effective Use of Remote ADR -- Tips From The Pros

Remote ADR Is An Effective Way To Resolve Disputes At A Time When COVID-19 Has Shuttered Courts And Delayed Legal Procedures.

        The COVID-19 Task Force of the Orange County, California Bar and the ADR Section of the Bar jointly hosted a Zoom webinar on August 14, 2020 about the effective use of remote mediation. The panel discussion included the Hon. David Chaffee (ret.), the Hon. Franz Miller (ret.), and Jill Sperber, mediator/arbitrators who come from three major ADR providers: ADR Services, JAMS, and Judicate West. Our panel moderator was Darrell White, a director of the OC Bar, and a business litigator at Kimura, London & White LLP. As chair of the ADR section, I introduced the topic and our panel. Remote ADR continues to be a hot topic in California, five months after we began “sheltering in place”, and the webinar attracted over 150 participants.

        Our panelists explained the obvious need for videoconferencing triggered by the public health crisis:

• Cases requiring a civil trial in Orange County are very unlikely to get to trial before 2021.
• Getting to trial may require a  statutory preference (e.g. bumping up against the five year rule) or else stipulating to an expedited one-day jury trial.
• Juror response rates, once estimated at  80%, may now be around 40%.
• Older persons are likely to be more reluctant to serve as jurors.
• Courthouse logistics are inhospitable, with limitations on the number of people who can ride in an elevator, and limitations on seating in courtrooms and jury rooms.
• The case inventory of individual judges has greatly increased. When the COVID-19 crisis subsides, inventories will increase, as cases such as unlawful detainers and foreclosures move forward.

        Those new pressures placed on a judicial system already suffering from a lack of resources mean that, for many lawyers and litigants, remote ADR will be the best and only way to resolve disputes.

        Here are some takeaways:

        While generally preferring face-to-face meetings, the panelists have been able to make effective use of videoconferencing to resolve cases.

• Though not the exclusive platform, Zoom is the preferred platform of the ADR providers, attorneys, and clients.
• For many parties, remote mediation offers the comfort of their surroundings, and costs and time efficiencies, as there is no need for  travel (or a parking fee). It is especially helpful for bringing participants to the table from out of state.
• The added comfort, and cost and time saving of remote ADR may, in some cases, make a case harder to settle, because the ease of videoconferencing may mean that parties and attorneys invest less time, money, and effort into the process than would be the case in a face-to-face meeting.
• Physical distance  can be helpful in highly emotional cases, and therefore videoconferencing may be well-suited for employment, sexual harassment, and partnership disputes.
• Always have a backup communication plan in case the videoconferencing platform fails.
• Test the platform with attorneys before videoconferencing.
• While videoconferencing can result in a signed settlement agreement, using services such as DocuSign, often the outcome will be agreed-to deal points, followed up with a notice of settlement filed by the attorneys, and the court’s order to show cause why the matter should not be dismissed after a  reasonable amount of time to finalize a settlement.
• Mediators can treat videoconference mediations like ordinary mediations, using the videoconference platform to hold joint sessions and effectively caucus in breakout rooms. And parties and attorneys should treat videoconference mediations like ordinary mediations, taking them seriously, and being thoroughly prepared.

        Bottom line: remote ADR is a good alternative to face-to-face meetings. Just as CourtCall initially faced resistance but came to be widely accepted, we expect that remote ADR will grow in acceptance.