The past few years have brought seismic changes in many aspects of society, including the way we solve disputes. Challenges faced during the pandemic led to new paradigms in remote ADR, while international unrest and shifts in the expectations of companies and consumers have forced many to re-think how business is conducted.
Here’s a look at three trends shaping the current ADR landscape:
The rise of remote dispute resolution
While stories about the long-term and sometimes unexpected effects of the COVID pandemic have become somewhat of a cliché, any discussion about trends in ADR must acknowledge the shift it has caused in the way parties think about where and how dispute resolution can occur.
The pandemic led to an uptick in litigation, on everything from employment and workplace issues to breach of contract. Add that to litigation postponed during the pandemic, and parties are increasingly likely to turn to dispute resolution outside of the courtroom.
Fortunately, ADR lends itself to remote solutions. The use of videoconferencing, electronic document exchange, and more contributes to streamlined outcomes. Many of the practical benefits of remote ADR are measurable, such as decreases in travel expenses and saved time.
Remote ADR also can have a positive impact on the environment. While it is not a foregone conclusion that the overall environmental impact of remote work will be beneficial, opportunities abound for greener dispute resolution. The Campaign for Greener Arbitrations created a “Green Pledge” to encourage providers to take steps like traveling responsibly and using videoconferencing where possible, and Alterity ADR is proud to be a signatory.
On the other hand, the challenges associated with remote ADR may be less apparent. One recent survey indicates that 65 percent of around 500 mediators who answered a questionnaire about remote mediation stated that technical difficulties were the main challenge. Less tangible difficulties are more difficult to identify. The same survey noted that 42 percent of respondents stated that it was more difficult to establish rapport online, while 28 percent noted a lack of party engagement. Another study on remote proceedings cited the psychological impact – both positive and negative – of the greater informality of appearing remotely, as well as issues associated with “Zoom fatigue.”
But by now, parties have had two-plus years to work through technical challenges of now-familiar remote platforms and the dark days of the cat-filter lawyer may be behind us. As parties and neutrals become more accustomed to remote ADR, we will also continue to adjust to both practical and intangible realities of online dispute resolution.
International unrest and ADR
Following Russia’s invasion of Ukraine, governments around the world acted quickly to impose sanctions, while many international companies withdrew from Russia. In addition to losing Russian markets and goods originating in Russia, the unrest within Ukraine itself also disrupted international supply chains.
As with COVID disruptions, the interruption in the flow of goods and services caused by the Russian invasion inevitably leads to commercial disputes. In addition, pending international disputes based in Russia or involving Russian companies may be put on hold pending the end of the conflict.
While remote proceedings used during the pandemic were by no means an easy fix, they did provide a release valve on the pressure of the pandemic. Such solutions are less in the wake of political unrest. For now, it appears that many disputes remain on hold while the war creates additional fissures.
Limits on mandatory arbitration in the U.S.
Earlier this year, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act into law. The new law invalidates certain pre-dispute mandatory arbitration clauses in workplace sexual harassment and sexual assault cases.
A broader bill, which would bar pre-dispute mandatory arbitration clauses in matters including antitrust, consumer, and employment matters passed the U.S. House of Representatives in March 2022. In the Senate, it has been referred to the Judiciary Committee. Supporters of the bill, including its Senate sponsor Sen. Richard Blumenthal, D-Conn., say it will protect individuals from nursing home residents to cell phone users.
Laws like these will continue to shape the face of dispute resolution and what disputes will be heard through ADR.Alterity ADR is uniquely placed to face today’s challenges and harness opportunities. We are at the forefront of current trends, with a mission to give parties the best and most effective dispute resolution. This includes the rules we’ve adopted to give parties autonomy over the process, as well as our intentionality in building a diverse team of neutrals with extensive experience in U.S. and international disputes. No matter what the current trends, we are here to provide the best ADR solutions for every dispute we handle.