By Shaun Odes
ADR has often been championed as a tool for enhancing access to justice; however, the recent necessity of pivoting towards online forums has accidentally enhanced access to justice in ways we have never seen. While the COVID-19 pandemic was the root cause of this transition, OADRs benefits will likely lead to its normalization outside the confines of the pandemic, and therefore have a lasting impact on access to justice.
How does the shift to online enhance access to justice?
Cost is one of the first factors that comes to mind when discussing barriers to access to justice. That is, a lack of financial resources makes it difficult, sometimes impossible, to pursue a costly endeavour like litigation. The growth of ADR has often provided a more cost-effective method of dealing with, when appropriate, these disputes. However, face to face ADR can also be financially taxing for many people. Some of these costs consist of: mediators/arbitrators, representatives (if applicable), in some situations a rented space, time off work, travel time and expenses, having someone else take care of your dependents, etc. The move towards online, and hopefully its normalization, helps eliminate some of the aforementioned costs, and therefore allows an already more affordable means of dispute resolution to become even more accessible.
It is important to note that cost might also be an issue with online ADR because it is necessary that a participant have access to a computer or phone which is compatible with the applicable software. Further, it is necessary to have an internet connection that is stable enough to be able to properly and fully participate.
Power imbalances between participants in, for example, mediation can often be attributed to many different factors. A common result of these power imbalances will be the emotional state of a participant during the mediation process. The power imbalance and the subsequent emotional state of the participant may hinder their ability to provide their perspective as well as express what is needed for them to come to a mutually beneficial agreement.
The nature of online mediation has tremendous potential to lessen some of the factors leading to power imbalances and the subsequent emotional state of a participant. That is, often a participant will be attending the mediation from the confines of their own home, a safe place. Being in this safe place in combination with the absence of the physical face to face aspect of mediation might ease stress, anxiety, fear, and intimidation.
On another note, the subject matter being discussed and/or the nature of the relationship between the participants may make it difficult for participants to even want to engage in a mediation while being in the same room as the other person. The ability to function online might increase a participant’s willingness to accept and participate in the mediation.
Accessibility for people with disabilities:
In any dispute mechanism, it is important that the participants are asked if there are any accommodations that need to be made in order to ensure that the participant is able to fully participate in the process. While there are many different accessibility issues for people with different disabilities, it appears that online technologies might eliminate some of the barriers that are present with face to face processes and also provide more tools to help accommodate. My colleague, Adam Donaldson, has provided an information-rich blog post covering accommodating disabilities in remote mediation as well as great tips for using Zoom.
As online mediation becomes more common, it is likely that platform developers adapt their technology to be even more accommodating than they already are. With that being said, not all accessibility issues can be accommodated in a remote setting, and therefore in some cases face to face mediation will remain a more appropriate form of mediation in regards to accommodating certain disabilities.
The amount of time it takes for a dispute to be heard and dealt with also impacts an individual’s access to justice. In some ways, many already wait too long before a dispute can be resolved through traditional means. Unfortunately, the pandemic is only going to intensify this issue as we see backlogs grow to the likes of which we probably have not seen before. OADR helps with this issue in a number of ways. First, generally OADR being available will allow more disputes to be dealt with in a more time-effective manner. Second, and as a result of the latter, OADR will help deal with many disputes during the pandemic that otherwise would have been put on hold.
Online forms of ADR, although relatively simple for many users, pose a problem for people who are not as well versed with technology. For someone wishing to attend an online mediation, this problem might be solved through a more user-friendly platform or having someone help you setup and navigate the platform. For others, traditional face to face mediation will remain a more appropriate and accessible form of mediation.
It might be argued that face to face mediation provides a level of intimacy that is unable to be reached by virtual mediation. This is important to recognize because certain issues require or benefit from interaction, dialogue, and a true understanding of the other participants’ position and emotions. In such situations, a level of intimacy might increase the probability of reaching a mutually beneficial agreement that the participants stay true to following mediation.
Having said that, this volume of online mediation is still relatively fresh, so only time will tell whether or not this argument is true. From my experience with online meetings, negotiations, and mediations, I believe that it is possible to reach the same level of intimacy and candour that some might argue is only attainable face to face.
Like most innovation, a problem arises and we develop a solution to the problem. The pivot to online ADR through newly established platforms was a direct result of necessity in an environment created by the COVID-19 pandemic. The hope, and what remains to be seen, is that this delivery of ADR will be normalized and always available. Although there are many benefits that have come and will continue to come from the normalization of online ADR, it is important that it be used when appropriate and that online supplements face to face rather than supplant it.