By Ellen Waldman
At the January American Association of Law Schools annual meeting, the organization’s Section on Alternative Dispute Resolution teamed with the Section on Commercial Law and Consumer Law, and the Section on Creditors’ and Debtors’ Rights, to host a panel discussion titled “Online Dispute Resolution in the Post-Pandemic Era.”
The virtual panel featured speakers Alicia Bannon from the Brennan Center for Justice at NYU Law School in New York City; Prof. Jean Sternlight from the University of Nevada, Las Vegas William S. Boyd School of Law, and U.S. Bankruptcy Judge Christopher Lopez, of Texas’s Southern District in Houston. The moderators were Prof. Christopher Bradley of the University of Kentucky’s J. David Rosenberg College of Law, in Lexington, Ky., and Prof. Amy Schmitz from Ohio State University’s Moritz College of Law, in Columbus, Ohio.
Noting that the pandemic pushed many forms of dispute resolution, including trials, into a virtual format, the panel focused its attention on both the promise and peril of widespread adoption of online dispute resolution.
On the promise side of the ledger, panelists agreed that the shift to virtual platforms had the potential to increase the ease with which disputants could access dispute resolution proceedings, cutting down on cost, time and inconvenience.
Judge Lopez, who presides over roughly 3,000 individual and corporate bankruptcies and, as of the conference, had conducted about 20 online mediations since proceedings went virtual in early 2020, was particularly enthusiastic about his court’s use of online evidentiary hearings and mediations. He observed that that stressed debtors juggling multiple jobs and parenting commitments need not take time off from work in order to “go to court.”
Allowing litigants the option to tune-in from their computers and cell phones conserved scarce time and money, helping debtors, in Lopez’s view, “keep their cars” and “stay in their houses.”
But panelists agreed that the rush to pivot online was not without its perils. Alicia Bannon, co-author of a report on best-practice principles for remote court proceedings, noted that the balance courts were being asked to strike was delicate: how best to adhere to public health guidelines while continuing to serve constituent communities, and to expand efficiencies while preserving fairness.
Courts, she suggested, should not be going it alone, but should engage with a diverse array of stakeholders, including, as noted in the report, “community advocates, public defenders and prosecutors, civil legal service providers, tenant representatives, survivors of domestic violence, public health experts, disability rights advocates, court employees, and more.”
The panelists emphasized the traditional courthouse as a place where litigants access legal information and guidance, and suggested that alternative forms of support needed to be built into remote proceedings. Pro se litigants were a particular source of concern as, in addition to being unfamiliar with the justice system, they may have limited computer literacy and may struggle with accessing and engaging with the required technology.
Recognizing and attending to the digital divide was a consistent theme. For those litigants with counsel and a sophisticated mastery of video-camera technique, online proceedings present obvious benefits. But, for those without counsel and no easy access to or understanding of computer-assisted communication, the dangers presented are equally obvious. Static reception, dropped calls, an inconsistent or shaky camera, distracting background visuals and ambient noise all influence a disputant’s ability to communicate, absorb information, and engage with other dispute resolution participants.
And, if one aim of dispute resolution procedures is to foster a disputant’s sense of procedural justice–the experience of having a voice and being heard–technology failures can render that goal impossible.
Prof. Sternlight in particular emphasized the importance of adopting a context-sensitive approach. Drawing on her research into the psychological impacts of varied forms of technology with co-author Jennifer Robbennolt, Sternlight suggested that different communication channels affect disputant behavior and experience in important ways.
For example, certain modes of communication are better suited to the expression and understanding of emotion. We can “read” upset or anger better in face-to-face or even video-conference meetings, as opposed to text or email exchanges.
Similarly, the perceived anonymity of an Internet-based communique can disinhibit disputants who would otherwise maintain a more polite discourse. Asynchronous technological formats such as email can slow down exchanges, leading to more thoughtful and deliberate decision-making. But the leanness of the medium and lack of interpersonal cues can lead to conflict escalation where rapport or goodwill in the relationship is lacking.
At an earlier moment in dispute resolution’s development, Northwestern University Pritzker School of Law Emeritus Prof. Stephen Goldberg and the late Frank Sander of Harvard Law School advocated for a form of triage where policymakers considered both a dispute’s characteristics and the particular attributes of litigation, arbitration, and mediation, and “matched the forum to the fuss.” Stephen B. Goldberg & Frank E.A. Sander, “Fitting the forum to the fuss: Factors to consider when selecting an ADR procedure,” 12 Alternatives 48 (April 1994) (available at https://bit.ly/3sAj8sT).
In today’s environment, panelists urged that we similarly match our technologies to the “fusses” that face us. When determining whether a dispute should be handled in-person, by phone, via video-conference or through an Internet chat, decision-makers must consider their goals for the process, the characteristics of the disputants, and the nature of the dispute or particular task at hand. See Jean R. Sternlight & Jennifer K. Robbennolt, “High-Tech Dispute Resolution: Lessons from Psychology for a Post-Covid-19 Era,” DePaul Law Review (forthcoming) (Sept. 9, 2021) (available at https://bit.ly/3HPjqBx).
All the speakers acknowledged that online dispute resolution proceedings pose new, previously unknown questions. Judge Lopez said that he has been spending a great deal of time thinking through the confidentiality issues that arise when litigants screen-share sensitive financial information that can be easily photographed and distributed.
He also noted that judges had to ensure that there was no “home court” advantage, and that litigants appearing in person receive no special attention compared to those appearing virtually. Panelist Alicia Bannon called attention to a study conducted in an immigration court that revealed detainees appearing virtually in immigration proceedings were more likely to be deported than those facing the judge in person. Appearing by video alone, however, apparently was not the determinative factor. Rather, those detainees who accessed court via video-conference also accessed legal services at lower rates than their “in-person” counterparts and seemed generally less engaged with the judicial process. In this way, the perception that online proceedings may provide a lessor form of justice becomes a self-fulfilling reality.
The discussion ended on a final point that resonated with the audience of educators. Courts need to train attorneys to be proficient with new online technologies and provide resources for disputants so that they can competently participate in virtual proceedings.
Similarly law schools need to emphasize technological competence as they work to prepare lawyers, mediators, arbitrators and other dispute resolution for our brave, new, online world.
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The author is Vice President, Advocacy & Educational Outreach at CPR. Her bio on CPR’s website can be found here.