The new world of virtual court attendances, arbitrations, and mediations has now been our reality for well over one year. There is no reason to believe that this will not continue, regardless of our progress in reducing the impact of the coronavirus on the population. In fact, users of Ontario’s justice system have already been told that virtual court hearings will be the new normal.
This news is far from all bad. Actually, there are some very positive aspects to virtual litigation. This may be particularly true for parties to disputes seeking to either arbitrate or mediate their disputes.
Common to both arbitration and mediation is the fact that the parties select their own neutral. In the past, as a general rule, parties and their counsel were usually restricted to neutrals residing near locations where the parties lived or did business. This did not ordinarily represent a serious obstacle for parties located in highly populated areas. However, this posed a serious problem for those in smaller centres where there are fewer trained and qualified mediators and arbitrators. The only solution was to pay the additional expense involved in bringing in or going out of town to see the selected neutral.
Furthermore, in disputes involving highly technical fact patterns or complex legal principles, the search for a local qualified neutral is more complicated and far less likely to be fulfilled adequately.
In the virtual world, these restrictions do not exist. Parties are now able to locate and engage neutrals literally anywhere in the world. The restrictions of living or working in small markets no longer apply, as neutrals anywhere can be engaged at no additional cost. Where specific expertise, whether legal, factual, or scientific, is required, the availability of neutrals with such expertise opens up dramatically. For an arbitration matter involving a complex area of knowledge, it is now possible to engage a panel consisting of a trained arbitrator and industry experts, from wherever they happen to be located, and all without the burden of travel costs to bring such individuals together in a room for days, weeks, or more.
In the world of virtual mediation and arbitration, there are almost no limits to the extent that imaginative counsel can accommodate the needs of their clients at far less expense than before.
The experience of the pandemic has been brutally difficult for almost everyone, but here is one example of a silver lining that should be exploited where possible.