July 23, 2020
In 2013, the Canadian Arbitration and Mediation Journal published a think piece on the current uses and potential future of online dispute resolution (ODR) as a branch of alternative dispute resolution (ADR). The authors, Dr. Frank Fowlie, Colin Rule, and David Bilinsky, encouraged ADR practitioners to start learning about video conferencing and related tools now because, as stated:
“Who knows what revolutionary technology awaits us in the coming years. No matter what comes down the pike, investing some time in learning about the tools of ODR will help you become a better dispute resolution practitioner, and prepare you for whatever is yet to come.”
It is unlikely that the authors considered a global pandemic coming down the pike, or else they would have directed this prescient advice to all legal professionals. To be sure, the COVID-19 pandemic has made online and virtual forums useful, if not essential, to all areas of dispute resolution.
What is Online Dispute Resolution?
There are two models of online dispute resolution (ODR). The first model employs the algorithmic power of computers to analyze legal issues and make recommendations to help parties reach an optimized solution. The second model, which is far more familiar and less futuristic, employs computers to facilitate human communication through virtual spaces. It is the integration of this second model into our legal system which COVID-19 has, for better or worse, accelerated.
Online Dispute Resolution Beyond ADR:
In response to COVID-19, nearly every tribunal and court in Canada has adopted virtual conferencing measures, where procedurally appropriate, to avoid a complete shutdown and an unmanageable backlog of cases. To name just one local example, Toronto’s Committee of Adjustment is now holding virtual public hearings on minor zoning variance applications until further notice.
It should be pointed out, however, that while COVID-19 has accelerated the shift toward virtual proceedings, the use of video conferencing by tribunals and courts is not novel. The Federal Court of Canada, for instance, has long used Zoom to connect participants in remote locations.
The difference now, of course, is that legal proceedings are increasingly being carried out exclusively through virtual mediums instead of merely being supplemented by them. Prior to COVID-19, the only major Canadian administrative tribunal to operate exclusively online was British Columbia’s Civil Resolution Tribunal (CRT). Most other tribunals and courts in Canada were not as well-positioned to weather the storm brought by COVID-19.
The Problem with Virtual Proceedings:
While the breakneck ‘virtualization’ of certain legal proceedings has helped alleviate access to justice concerns, it has brought with it other ethical issues, namely, privacy and procedural fairness concerns. Indeed, it is far more difficult to ensure the confidentiality of, say, a case management conference, when parties are able to video call in from anywhere in the world. Additionally, the right to an in-person hearing can be an important component of affording natural justice. While it is not necessary in the context of low-stake public proceedings, it becomes difficult to pinpoint where exactly it should be required as one moves along the spectrum from a minor variance application to a criminal trial.
The question remains whether, and to what extent, virtual meetings will linger after the pandemic subsides. However, if virtual conferences and hearings are to continue into the foreseeable future, it may be worth revisiting some of the ethics scholarship originally produced in relation to the older, narrower online dispute resolution movement. The article mentioned at the beginning of this piece provides a good starting point.
Author: Luke Devine