It is a hard time we live in right now. I wouldn’t dare to say that lawyers have it as hard as other professions, neither the less there are some issues specifically connected with legal disputes. With the new statute passed by the Polish legislator, all the judicial and procedural deadlines are suspended for the time of epidemic [1]. It is accordant to precautionary steps taken by courts all over the country.
Understandable there is a lot of concern regarding the outcomes of such actions, and rightfully so. It is a new situation for all of us, and it is impossible to know what the future holds. The only sure thing is that it will create chaos when it all ends.
Is there a tool that could be used by the lawyers to mitigate the negative effects arising from the situation we are in? I believe that in some instances proper use of Alternative Dispute Resolution methods could help resolve disputes remotely, but also after the epidemic ends it could reduce the number of urgent court cases and at least in some part help to return the judicial system to normal functioning.
What are the advantages of ADR in times of COVID-19 outbreak?
1. Avoiding delays due to the suspension of judicial proceedings.
One of the most important pros of ADR is time consumption. In a “normal” situation it is a big advantage, and now more than ever. A big part of it is the fact that mediation sessions or arbitration hearings are not affected by the actions taken by governments as much as state courts are. The parties can easily go on with their dispute with the usage of online tools. Of course, it is not the same as meeting face to face, but with the situation, we are put in it is still a possibility worth mentioning. It is an option that doesn’t cause delays and cuts costs of the proceeding as well. What is important here is the fact that both in arbitration and in mediation according to the principle of self-determination the parties are free to decide how to precede and are not bound by courts or legislator’s decision to suspend the proceedings.
2. Using the tools that are already tested and easier to implement.
In this area, the ADR community is a few steps in front of litigators. There are organizations that specialize in online mediation, such as ODReurope or Mediation International. The value of the claim doesn’t have to be big either. For example, ADR ODR International has a pro bono service for anyone in the UK, in which mediators help resolve small disputes (up to 9,999 GBP) online and free of charge. The same happens if someone would choose arbitration. World Intellectual Property Organization (WIPO) has an online arbitration service, and The Arbitration Organization of the Stockholm Chamber of Commerce (SCC) uses a digitalized case management system since 2013 and recommends online meetings with the usage of well-known service providers such as Zoom or Microsoft Teams. Moreover, one of the most prestigious arbitration competitions in the world 17th Vis East Moot was held virtually. In essence, it is much easier logistically to organize arbitration hearing, or a mediation session then digitalize court proceedings for thousands or millions of people.
3. Cost efficiency.
It is another “standard” argument in favor of alternative dispute resolution methods and again in difficult times even more accurate than ever. When there is no possibility of meeting face to face, the cost of arbitration proceedings or mediation session are even lower than normal. The costs are cut drastically, especially if it is an international dispute. The expanses connected to traveling and the organization of the meetings are reduced in some part or even completely.
4. Parties autonomy.
The issue that comes to mind while thinking about online dispute resolution is: “What if the parties to the dispute think that online methods don’t allow them to present fully their argumentation and their view on the case?”. To answer that it is important to remember one of, if not the most, important rule of both arbitration and mediation: the autonomy of the parties. It gives the parties to the dispute power to decide what to do and how to do it. Alternative Dispute Resolution methods are “built” on the parties’ consent and cannot work without it. Especially in mediation the party can “walk out” if they don’t like the directions in which the dispute is heading and don’t see the option of coming to mutual agreement. The right to a fair hearing is also protected in terms of arbitration. According to The New York Arbitration Convention [2] (Article V.1.b) and Polish Code of Civil Procedure [3] (art. 1206 §1 point 3) if the party was unable to present their case, the recognition and enforcement of the arbitral tribunal award may be refused by the state court.
In conclusion, it may be a good idea to at least think about the possibility of using one of the alternative dispute resolution methods not only for the best interest of the clients and lawyers themselves but also taking into consideration the situation that the courts and judges will be put in when the epidemic will end and everyone will try to resolve all of their pending issues at the same time.
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Legal sources:
[1] Ustawa o szczególnych rozwiązaniach związanych z zapobieganiem, przeciwdziałaniem i zwalczaniem COVID-19, innych chorób zakaźnych oraz wywołanych nimi sytuacji kryzysowych [Special Coronavirus Act] Mar. 2, 2020, art. 15zzs (Dz.U.2020 item 374 with amendemnts) (Poland).
[2] New York Convention on the Recognition and Enforcement of Foreigner Arbitral Awards (New York, 10 June 1958).
[3] Kodeks Postępowania cywilnego [Code of Civil Procedure] Nov. 17, 1964 (Dz.U. 1964 vol. 43 item 296) (Poland).