When the court delays and closures kicked in and virtual business went from a novelty to a necessity, Roger Moss’ schedule started filling up quickly.
“I’ve been working without a break since March 13,” said Moss, mediation counsel who works with clients in Washington and the San Francisco Bay Area. Stay-at-home orders in response to the coronavirus pandemic led to a flurry of requests from firms and legal organizations for Moss and others in the dispute resolution field to offer their advice on how to manage cases when traditional courtrooms aren’t an immediate option.
“The work we’re doing and the program I manage is all empowered by the fact that we’re doing everything online,” Moss said. “We designed it that way.”
And Moss thinks fast, online dispute resolutions will be a critical component in preventing residential and commercial evictions rather than hashing issues out in court after someone has already been displaced. In about three weeks, Moss said he’d taken on about eight new cases involving residential and commercial lease disputes, including pro bono work he picked up by responding to forums on platforms like Avvo.
“The legal system is not designed well to deal with them, generally speaking,” Moss said. “It’s a collaborative issue, a collaborative process—you can do that so fast online.”
The sudden and mandatory adoption of remote-working practices has been a difficult transition for the legal profession as a whole, but in some sectors like dispute resolution COVID-19 merely accelerated existing trends.
“In family law we have used online meeting venues for years and so many of us are experiencing a shift from 20 percent of cases [being] handled completely online to 100,” said Joanna Teanini Roth, chair of the WSBA Alternative Dispute Resolution Section. “I think there’s a growing awareness that we can continue to work online. … I hope this is a call for us to develop and refine our skillsets so that we’re better equipped to work with clients in the absence of that third party decision maker.”
Jordan Couch, a partner with Palace Law and author of the Washington State Bar News column “Innovation in Law,” has a more bullish prediction.
“I’ll be bold and say that there is a 100 percent chance that the majority of lawyers’ work lives will never go back to the way they were before COVID-19,” Couch said, adding that lawyers who’ve established new tools and infrastructure are unlikely to scrap those investments. “Attorneys that have increased their capacity to work and serve clients by doing litigation and client meetings virtually will want to maintain that increased capacity. There will be some firm leaders who try to claw back their staff but it will be a mistake and it won’t work. Legal professionals have proven that they can maintain productivity while working virtually; the cat is out of the bag.”
In the meantime, members of the alternative dispute resolution community—aka “neutrals”—told NWSidebar they’ve seen more interest among other legal professionals to resolve cases more quickly and virtually through online dispute resolution.
“I know the courts are going to move everything out by months; even once court’s reopened you’re not going to get a trial date—if you want to get it resolved, then yeah, mediation/arbitration might be your best option right now,” said Sasha S. Philip, who’s recently written blogs like “The Not-So-New World of Virtual Dispute Resolution.”
Before COVID-19, the dispute resolution organization JAMS “didn’t get a lot of uptake” for its online offerings, according to Senior Vice President and Chief Legal & Operating Officer Kim Taylor. Now that’s all changed.
“Our first course of action was to begin to reach out to the parties who had cases coming in and either continue things to a future date or remind them of the technology we have,” Taylor said. “Pretty quickly a wide range of our neutrals and their clients agreed to try it.”
One such neutral with JAMS is former Washington Supreme Court Associate Justice Faith Ireland.
“I think that the idea of moving a case from a jury trial to an arbitration offers the main advantage of being available immediately and a secondary advantage of being perhaps a simpler and less complicated process … ,” Ireland said. “Coronavirus is causing everybody to cooperate.”
While online dispute resolution has its advantages—increased accessibility for some legal professionals and their clients and the ability for neutrals to break parties into different virtual groups—not everyone is eager to throw away traditional negotiation for its digital counterpart. On a videoconference it’s more difficult to read body language and other social cues that many find invaluable during negotiations. However, according to Couch, “While there is something to be said for having everyone in a room together when you’re trying to resolve complex problems, studies show that consumers feel the same sense of justice whether interacting with a robot online or a judge in a courtroom.”
However, virtual negotiations present unique challenges in both security and client confidentiality. Beyond the usual security concerns with online tools (check out NWSidebar’s other articles on Zoom security and the ethics of working remotely) there’s the added possibility that someone might record the session or include an uninvited party who’s hidden off camera. Such unique challenges require unique agreements.
JAMS, for example, recently updated its confidentiality forms and protocols for virtual mediation and arbitration. The National Center for Technology & Dispute Resolution maintains an online dispute resolution bibliography with such resources as “A New Agreement to Mediate: Guidelines for Ethical Practice in the Digital Space,” which outlines suggested terms for online mediation agreements.
Although, as most of us have experienced recently, not every uninvited guest is a problem.
“With everyone at home right now, if a cat jumps into someone’s lap that’s a pretty good opportunity to build a relationship,” Philip said.
