[PODCAST] JAMS Neutrals See Strong Future for Hybrid ADR Proceedings

In this podcast, JAMS neutrals Zee Claiborne and Michael Young discuss virtual and hybrid proceedings at JAMS, the benefits of these types of proceedings and how they have changed the practice of ADR. They also discuss the important role technology plays in hybrid proceedings and why they believe hybrid proceedings are here to stay.

[00:00:00] Moderator: Welcome to this podcast from JAMS. In this episode, we're going to explore hybrid mediations and arbitrations, which have become increasingly common in recent months. To talk about that development, we have two JAMS neutrals, both with over two decades of experience, mediating and arbitrating complex business disputes, Zee Claiborne in San Francisco and Michael Young in New York.

Thank you both for being with us. Michael what's driving the popularity of hybrid proceedings?

[00:00:31] Michael Young: Well, I think there's two factors going on. One is, given the uncertainty in the world and where we are vis-a-vis the COVID virus, parties have differential views of risk. So, some parties are more concerned about the risk of the virus and being in an office with other people than are other parties or some people connected to other party, whether it's a lawyer or the client representatives, are more concerned or are more sensitive than others might be. So, the solution that we try to come up with, and that works in many instances is the hybrid proceeding where those people who are comfortable can attend in person and those people who are not comfortable can stay available and participate fully remotely through the video platforms.

As neutrals, we are sensitive to making sure that kind of arrangement doesn't create any unfairness, but again, the availability of the platform in this concept of hybrid proceedings is the solution to that problem.

I think in the long-term, there's always going to be an issue that some people are more available to come to the mediation session in person or the arbitration in person than others, whether that's because of concern about cost or travel time or some other reason. So, people are realizing now that we've gone through a year of mediating or arbitrating on Zoom, or on any kind of platform, a video platform, that it's a good solution.

 I think that will become a bit perceived in the long-term even when, hopefully we're past the COVID crisis that will be perceived as a solution to having proceedings where people may be in different parts of the country and different parts of the world. We can do it with this hybrid mechanism.

I think that's what's driving it now.

[00:02:31] Moderator: Zee, can you talk about some of the advantages that you see to hybrid proceedings?

[00:02:35] Zee Claiborne: Yes, first, I just wanted to say that I agree with Michael because back in March 2020, counsel were so hesitant to convert hearings to some sort of online forum.

Offices were closed. The courts closed and clients needed legal services. So, they soon realized they'd have to manage their practices and now we see how positive the experience can be, and participants are asking for online and hybrid hearings. I think the advantages are several, flexibility, of course, because particularly as the COVID numbers change, we can move things on or offline pretty easily.

It's very efficient, especially for those who are traveling and definitely cost-effective. My cases are often international or involved parties from different areas of our country and some participants can't travel due to COVID restrictions.

So, for example, I recently arbitrated a case where the claimant was in Colombia and couldn't get out of that country because of the COVID rules. I also dealt with parties in Armenia, dealing with a company in our Midwest. So, we were able to do that. Sometimes, I think also counsel in one location may want a neutral from a different one but let me just talk about a case that I'm working on right now.

I have hearings up in Oregon. Two cities are suing a large engineering firm over design of three public facilities, and we are planning a hybrid hearing - an in-person meeting in Portland with council and the key decision makers. The experts would be on Zoom. The city employees would also be on Zoom and insurance representatives could be there too.

That has two great benefits. One is it's always easier. We mediators know that easier to negotiate with a smaller group of decision makers, but also it means that there is some safety during COVID, and I think we're going to see a lot of variations on this process now, we just haven't figured them all out yet.

[00:05:03] Moderator: Michael, would you add any other advantages to that list that Zee talked about.

[00:05:09] Michael Young: I think she's hit them all. Flexibility is obviously a major advantage just looking from it from the mediation perspective. There's many, many times that I've been in situations where somebody important to the process cannot attend in person. This is irrespective of the COVID crisis. It was always an unfortunate circumstance and a difficult circumstance to conduct the process, knowing that an important person would be available only by telephone. The video option allows for participation throughout the day and is a much, much more effective way of communicating with that person than if it were just the other end of a telephone line.

Hopefully we'll make what we've experienced in the past irrespective of COVID a more effective way around that problem, but I think Zee otherwise hit the points.

[00:06:13] Moderator: Zee, when and how does the hybrid option typically come up in mediation or arbitration? Who gets to decide what parts of the matter are virtual or in-person?

[00:06:24] Zee Claiborne: It's an interesting question. I'd say in a mediation, the hybrid option arises at different times, and I don't necessarily try to dictate how that will happen. I work with the lawyers and talk about it, and we try to jointly figure out how to manage things so that everybody can be heard in a fair way. So, we adapt to changing conditions.

For example, I was talking about a mediation up in Oregon. As these COVID numbers are going up, I expect maybe that some of the people we thought we would hear from in person are going to be online. So, I wait to hear about that. I do a lot of arbitrating and the plan for arbitration generally occurs during the preliminary conference.

That's when we work with the lawyers to plan the handling, and I write a scheduling order, all arbitrators do that. That's what I call a blueprint for the case. Ultimately, the bottom line in an arbitration is it's up to the neutral to decide. The American arbitration rules say that. The new JAMS rules also say that, and the arbitrator can make a decision to proceed online if that seems to be the best way to handle the case, but it's important to be fair and make sure that the process is perceived to be fair. For example, in a recent mediation, I dealt with two sides and only one side wanted to be present in person. In this particular situation, I could tell that if I met with one side in person and the other side was online, there would be a perception of favoritism, and so I talked everybody into working online and we did get the case settled.

[00:08:28] Moderator: Michael, Zee just mentioned some conflicts. Have you ever seen those conflicts arise and, and how do you resolve them?

[00:08:35] Michael Young: Well, let me address that, but just also add one more thing to what Zee had said a second ago, which is my experience over the last year, particularly over the last three, four or five months has been in arbitrations when we have the case management order or the blueprint as Zee, I think aptly described it. We've sort of left open the issue of in-person or virtual or hybrid and have included language that indicated that the parties and the arbitrator would further discuss this as we got closer to the hearing and assess the situation as it then stood.

 I think Zee referenced the new JAMS rules, which makes it explicit that there can be a virtual proceeding and the arbitrator has the authority to decide that. Most of us, including, I think Zee as well as myself, had interpreted the prior version of the JAMS rules as also giving us that authority, and when there was a dispute, we exercised it. We exercise that authority. Interestingly enough, I would say at the beginning of the pandemic, there was some pushback as to whether proceedings should be video, but as it became clearer and clearer that the pandemic was dragging on, the resistance to the video proceedings became less.

In the context of a mediation. I think Zee is correct in suggesting that ultimately the parties have to decide whether the mediation is in person or hybrid or video. I mean, that's barring sort of special circumstances where a court might've ordered a mediation and given the mediator the authority to decide but barring that exceptional circumstance generally it's what the parties decide.

But as Zee suggested, the mediator is part of that discussion, encourages that discussion, works with the parties to resolve any dispute. I will say certain mediators, and I'm one of them as of today has taken the view that I will not mediate in person unless every participant has been vaccinated. So, to that extent, the mediator does weigh in and can exercise his or her own discretion as to what he or she is willing to do.

Then secondly, I think Zee's point was also right on that the mediator does have an obligation to ensure a fair process, and if doing something hybrid where one party is present and the other party is not present will be, or will be perceived as, unfair, you probably wouldn't do it.

[00:11:11] Moderator: Well, technology is obviously key to successful hybrid proceedings. What's been your experience with the technology at JAMS, Zee?

[00:11:19] Zee Claiborne: Well, it's actually been very good. If you asked me about it back in March of 2020, I would have told you I was terrified that everything was going to fall apart, but our JAMS panelists were trained to work electronically, and we learned very quickly. We had to learn very quickly back in March. There were no other alternatives then. So, we also trained online and then began to use our Zoom network. Particularly, it's a funny thing because when I first was trained, I was very nervous, especially about mediation, because then we have to be so adept at moving people around and going in and out of breakout rooms. One of my arbitrator friends, mediator friends said, Well, the first time, you're really nervous. The second time you feel a little better and the third time you're an expert. So, I think that's pretty much, I imagine Michael will agree with me on that. That's pretty much how it went.

So, JAMS also invested in technology and assistance. We have a wonderful team of JAMS moderators. Those are individuals who will set up the meeting, whatever it is on Zoom or whatever platform it is, and start the day with us, make sure everybody's in, everybody's in the correct room and that's really helpful. I can take it from there. We also have what we call a hotline, which is a great thing because the other day I got online to start a mediation and I realized I had the wrong link. Then it occurred to me that probably all of us had the wrong link for whatever reason. So, I called the hotline, and somebody answered right away and set everything up so that we were all connected, and we were only maybe five minutes late as a result of that process. I've also had people who were involved in an arbitration, maybe witnesses who had trouble connecting to our arbitration, and the hotline is very helpful that way too. This year we've had a lot of remodels in the offices, and we've added screens and other devices to make it easier to work online.

Then we have something called Zoom carts. I haven't used one of those yet, but I'm told they are, I've learned a new term, I'm told they're platform agnostic, meaning it's not just a Zoom cart. It also could be a Team's cart or whatever, so that will make it easier if some of us are in the office and some of us are not.

So, we've learned that neutrals have to have these skills to work online. I understand that clients get very concerned if things don't go smoothly electronically, so we all have to learn how to do that. And think a lot of things now are done electronically. For example, nobody sends me binders of documents anymore. Before an arbitration, they put things on a thumb drive, and I'm used to that, and it works very well.

[00:14:41] Moderator: Michael, have you had similarly positive experience with the technology at JAMS?

[00:14:45] Zee Claiborne: Yeah. I think that's all correct. I think, you know, I remember this same experience Zee had at the beginning, so trying to figure out what this was all about and waiting with some degree of trepidation for my first case.

As Zee says, by the second or third or fourth case, it felt very, very comfortable. I think part it was my comfort level, but it was also a question of the parties and the lawyers, at least who also spent a year mediating or arbitrating using a video platform, got more comfortable with it. The technology improved, but the actual technology improved over the year, as well as JAMS adaptations and ways of dealing with it. The only thing I really would add to what Zee said is at least with the arbitrations, the arbitrator community, and those of us who arbitrated with JAMS have developed sort of standard protocols that will govern the use of technology during the arbitration hearing. So, there are things or ideas and concepts we've all worked on, and now I've reduced to a written protocol slash border that governs the way the proceedings take place.

So, for example, initially there was some concern about, well, if you have a witness who is testifying remotely, how do we make sure that that witness is not being coached somehow or is not looking at some documents that none of us can see. That would have been something that would have been apparent in person. So, we've tried to work around that. The witnesses not allowed, for example, to use a virtual background so that will be on the screen will be his or her surroundings and not some virtual background. The other thing I would say we try to work with is to make sure all participants in the process have adequate connectivity because the one sort of problem that still sometimes arises is if there's not adequate connectivity, you lose that participant. Sometimes it happens because there's a storm event outside his or her workplace or home, and obviously you can't control for that, but you do try to control for just infrastructure features like ensuring connectivity. But it has gotten better, and as Zee says, we try to be conversant and able to function on multiple platforms.

[00:17:14] Moderator: Michael, you've mentioned that technology has increased greater participation, but also greater flexibility among all the parties. Can you talk about the consequences of that for arbitrations and mediations?

[00:17:25] Michael Young: Well, I think it has eliminated sometimes the problems of a remote witness in arbitration and how do you get remote witness to a hearing. Again, putting aside the COVID constraints, just the normal cost constraints, the normal travel constraints. I remember when I first started out two or actually more decades ago, remote witnesses would be heard by conference call and that was not overly satisfactory.

This is having a video option that's easy and better than had been the case. It is much more effective. I think part of the reason why we all gravitated towards the video is particularly during the pandemic, the notion of being in a room and either being six to 10 feet away from the next nearest person or wearing a mask was much less helpful in the mediation process or in the adjudicatory process that's part of the arbitration, than having somebody who you can look at on a screen, albeit on a screen, but you get a full frontal view without a mask and in a very, a real time, precise, there's no cloud to the face. You see the face. It's very visually satisfying.

[00:18:46] Moderator: Zee, how do you see the hybrid proceedings evolving from here? Do you see them becoming the norm?

[00:18:52] Zee Claiborne: I do. I definitely agree with what Michael said about the old days when we heard witnesses by phone, some of the time. I also agree with what he said about meeting in person and trying to handle an arbitration wearing a mask, which I think would be a very difficult thing to do and might be required even if everyone can say they're vaccinated.

So, I think hybrid hearings will become the norm. Despite the initial resistance, handling mediations and arbitrations online has become actually quite popular. I'm finding now in talking to parties who want to have hearings sometime in 2022, some of them are requesting to meet on Zoom, or at least they're saying, well, please let's plan to meet in person, but we know that we can switch to an online hearing if conditions change.

I think that there's become now a recognition of the fact that panelists, arbitrators and mediators, can be as good online as in person. For example, we have not been seeing that mediated cases settle less frequently if we're online. In fact, I'd say in my practice, it's about the same. They still can settle in some very difficult cases. They can settle while we're online. In arbitration, I agree with what Michael said about being able to see the witnesses. I have an order that I use. I call it my Zoom order that basically has the details of what the participants need to know and the rules they need to follow while working on Zoom. But when I ask a court reporter to swear a witness in, I also asked that reporter to inquire of the witness who else is in the room.

So, we know if anybody's there and we can see that too. So, I think hybrid cases are the future. I think we'll get even better at it as time goes on and hybrid techniques will just be a normal part of case management and something that we'll talk about every time we get started on a case.

[00:21:14] Moderator: Michael. Do you agree? Are you bullish on the future of hybrid proceedings?

[00:21:18] Michael Young: I'm bullish. I would say just so neither Zee nor I sound too Pollyannish about this. I mean, there are cases that probably being in person is a little better. I mean, if you have a mediation, you know, somebody is going to be very hard to persuade for whatever reason to settle in what is likely the more realistic way.

 I think all of us feel as good mediators, that it would be nice to be able to sort of be with that person and in person and look him or her directly in the eyes and being five or six feet apart, reasonably, and work with that person. I think there was some sense that technical cases either mediated or arbitrated, but let's now focus on the arbitrated technical cases, are better off in person.

I'll just say, I recently had a conference call with two co-arbitrators in what's a property damage case in an insurance context. So, we're going to be looking at what happened to the property and what it will cost and what's the best way of reconstructing the property.

So, I think we all said to each other, if need be, we'll, we'll make it work by video because has worked in the past. I have construction-like cases like that by video, but we're looking forward to possibly being together in the same room - the three arbitrators, looking at construction plans together and being able to study them together.

So, there are things that might be better off in person. Of course, it's always nice to be with people as opposed to looking at a screen, but bottom line is I've done construction cases by Zoom. I've done other technical cases by Zoom. I've done cases where people are hard to persuade by Zoom and it works.

[00:23:12] Moderator: We'll leave it there for now. Zee, Michael, thank you so much for your time. We really appreciate it.

[00:23:18] Michael Young: Thank you.

[00:23:18] Zee Claiborne: Thank you.

[00:23:20] Moderator: You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider. Our guests have been JAMS neutrals Zee Claiborne and Michael Young. For more information about JAMS, please visit www.JAMSADR.com.

Thank you for listening to this podcast from JAMS.