Author : Noel Rhys Clift
Release : 2021
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Kind : eBook
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Book Synopsis The Impact of COVID-19, Facilitative Mediation, Early Intervention, and the New Visual Online Dispute Resolution - Part 2 by : Noel Rhys Clift
Download or read book The Impact of COVID-19, Facilitative Mediation, Early Intervention, and the New Visual Online Dispute Resolution - Part 2 written by Noel Rhys Clift. This book was released on 2021. Available in PDF, EPUB and Kindle. Book excerpt: This is the second of two papers published at the point of consolidation of a revolutionary new step in ADR, at a particularly striking moment, the British Government having, as at 19th July 2021, lifted substantially all formal, domestic restrictions imposed to curtail the spread of COVID-19. Since this paper was first drafted (but shortly before its publication) the Civil Justice Council issued a new Report suggesting that, contrary to the view previously held, compulsory ADR (and thus mediation) may be both lawful and desirable. The Ministry of Justice has also issued a Call for Evidence (CfE) on Dispute Resolution in England and Wales. The CfE period expired on 31st October 2021. Major procedural change may be on the near horizon. Facilitative Mediation (FM) has progressively become the dominant form of alternative dispute resolution (ADR) process in the UK and more widely aboard. FM is now probably the dominant form in major international disputes and the principal form of ADR chosen by the International Chamber of Commerce in Paris. The main reason is that it works, cases settle, problems are solved. The first paper was principally directed to that process.Early Intervention (EI), sometimes referred to as Early Intervention Mediation, is a new form of mediation. It has evolved from the original concepts that have made facilitative mediation so successful, but with differences that can prove useful, in particular cases. It offers a wide range of methods to reach consensus and settlement. This second paper now sets out, in fairly short form, some of the essential features of EI.Online Dispute Resolution (ODR) has existed from some point after the launch of the internet and widespread use of email, from about 1999 onwards. Software systems now offer the opportunity to conduct both traditional mediation and early intervention remotely, in a manner that broadly replicates the original concept in each case, but in a radical new way, as a new and enormously enhanced form of Visual ODR. This change has occurred with staggering rapidity. The COVID-19 pandemic and technology have made on-line mediation, and on-line EI, both a necessity and a credible, workable and effective new normal. This second paper in large part also deals with this new Visual ODR.At the end of this paper there are conclusions that touch on the material covered in both the first and second paper (designated Parts 1 and 2). Before turning to the main themes, this article (Part 2) looks very briefly at the nature of change and at dissonance between problems that become disputes, on the one hand, and the usual timetable for their resolution by formal process, on the other. CHANGE: Change might be said to be generally of two types, evolutionary (often slow, progressive and incremental) and revolutionary (sometimes quite sudden, abrupt, wholly new). Twenty or thirty years ago, it was something of a revolutionary idea to use a process of mediation to seek to resolve commercial disputes. Such disputes would generally have found their way into litigation or arbitration, sometimes with little discussion beforehand. Indeed, it can be important, and in some cases essential, to act very quickly, for example to preserve (even seize) documents, evidence and to secure assets and cash. In England and Wales such proceedings are highly developed and governed by well-established substantive and procedural rules. Both are adversarial decision-making processes, where the judge, judicial panel (on appeal), arbitrator or arbitration tribunal (or court on appeal) will all act in a wholly independent manner, reviewing the issues (usually by reference to a pleaded case), arguments and evidence to determine who is right (on some or all points). It is not their role to seek to reconcile the parties, to resolve their problems and to settle their disputes. It was, of course, always the case that commercial disputes in litigation or arbitration would settle. The overwhelming majority have always settled, usually by negotiation, but often after they had progressed over some time, at significant cost. When such negotiation might start, how, on what terms varied from case to case; and still does. The idea that some material advantage might be seen in a voluntary process, where any party can walk out at any time, where an independent party might have little control of the parties, no powers to make order or give directions, no power to order production of documents, no power to require the production of expert evidence and no power to issue binding judgments or awards was revolutionary. It was even more revolutionary to devise (in the manner described elsewhere in these two articles) a dispute resolution model that entailed double confidentiality; that is, where the whole process would be confidential but the private meetings between the mediator (or mediators) and one party (or perhaps more parties) should be confidential to the parties attending those private meetings (or caucuses). Yet more so where at such meetings the parties might (and might be encouraged to) reveal anything that touched upon their interests and needs, even if adverse to their interests (or the assertion of their rights). Such is the nature of mediation.This has been a slow burning revolution, taking years to take hold. That said it has long since passed the tipping point (in large and commercial cases), although there are still disputes over which the spectre of Jarndyce v. Jarndyce looms large. Mediation has progressed from an uncomfortable and unwelcome heresy to orthodox practice, if not necessarily routine. It has then entered into a phase of evolutionary change. As is set out in this article, what one might consider to be the “standard model” of mediation has been progressively tweaked, adapted, changed with a few main objectives: first to break impasse, when parties will not even speak to each other (or will speak to some parties but not others), secondly to accelerate the process of talking, to get to the nub or crux of the matter, thirdly to save cost and finally to seek eliminate risk of a poor outcome. Early Intervention is a classic example of evolutionary change. This too has also taken time to attain acceptance and use.The advent of the COVID-19 pandemic, with lockdown, remote working and inability to travel or meet has brought about further revolutionary change. Where previously the accepted model of mediation had entailed, at some point, convergence of the parties, or some or most of them, in the restrictions necessarily imposed over the last 15 or 16 months, another method was needed, if problems were to be solved. Meeting on-line had seemed somewhat odd initially, in some ways it still does. But progressively, and remarkably quickly, it has been largely accepted and adapted as a workable method of conducting business. DISSONANCE AND SPEED: Commercial transactions can progress remarkably quickly. Some are necessarily subject to deadlines, for example annual review or renewal on fixed dates. A dispute might arise on an annual policy of insurance in say April or May which must be renewed at the end of September. It might be necessary, let us assume essential to resolve that dispute before renewal. There are, of course, expedited processes to resolve disputes by litigation or arbitration, say by preliminary issue or summary judgment. However, it would be difficult if not impossible to commence and serve proceedings, bring on an application for summary judgment, have that application heard and determined and judgment issued in due time. The timetables for commercial transactions and legal process necessarily beat to a wholly different rhythm.Conversely, if it were necessary to bring the parties together (in person or now on-line) to make a deal that might well be done by FM or by EI; provided the parties are willing to talk. This paper further describes how parties might talk.
