Dispute resolution mechanisms are still open to resolve disputes in these unprecedented times. Various forms of Alternative Dispute Resolution (ADR), including mediation, are being conducted online. Courts and arbitral tribunals are also conducting virtual hearings.
The extraordinary circumstances of 2019 Novel Coronavirus (COVID-19) - its emergence and rapid spread - are being felt everywhere. The courts, tribunals and various dispute resolution bodies are no exception. Hearings are being set aside and postponed, and matters that once would have been addressed in person are now being resolved via email, video link or teleconference.
Yet, the sources and causes of disputes have not dissolved. Quite the opposite. For many commercial actors COVID-19 has caused immense supply-chain difficulties, triggered employment issues, and raised potential liquidity concerns. And with this, disputes increase.
Many features of the procedures of courts, tribunals and dispute resolution bodies may be addressed online, or via video or teleconference. Such methods are often already the norm for many forms of ADR.
In this alert we summarise the various methods by which parties may still commence and pursue dispute resolution processes in a time of social distancing, isolation and quarantine.
Parties continue to seek to negotiate a resolution of their disputes. The means available for negotiations may be limited to video or teleconference calls rather than face-to-face meetings. Nonetheless, they are still proceeding.
The use of a neutral third party through mediation to assist with negotiating an amicable resolution of disputes is very common in Australia. Mediation is becoming increasingly common for cross-border disputes, particularly with the new Singapore Mediation Convention.
Many mediation centres, such as the Australian Disputes Centre (ADC), have facilities to conduct virtual mediations. ADC Virtual is an "‘all-in-one’ platform" that provides virtual meeting rooms. There can be a series of virtual rooms to enable "open sessions" where both parties meet with the mediator as well as separate meetings between one party and the mediator that would usually be conducted in retiring rooms. Documents can be securely uploaded and shared. Settlement agreements can be signed and exchanged.
Virtual mediations are also being conducted through Zoom, another online platform that provides the parties with access to multiple meeting rooms as usually required for an "in-person" mediation.
The feedback so far? Very positive. Disputes have been successfully resolved online with the assistance of a mediator.
Expert determinations are often used for issues that require technical or other specialised expertise. A neutral third party, with the required expertise (such as an accountant or an engineer), is appointed and issues a decision. The determination may be final and binding or subject to litigation or arbitration depending on what the parties have agreed in the underlying contract.
Typically the expert determination process is informal. A timetable is agreed for the submission of statements and supporting documents as well as witness statements and expert reports (if required). Many expert determinations are decided on the papers without a hearing or even a face-to-face meeting with the expert. However, the expert may arrange a meeting to request further information or ask questions of the parties. If an expert were to request a meeting, that meeting can now be arranged online using Zoom, Bluejeans, Skype or another online platform.
In short, expert determinations may continue in the current environment with little if any change.
Arbitration is a consensual dispute resolution process in which parties choose to have their matters resolved by an arbitrator or an arbitral tribunal. The arbitrator (or tribunal) hands down an arbitration award at the conclusion of proceedings which is binding on all parties and enforceable in (most) national and foreign courts. Arbitrations are usually private and confidential.
Arbitration is by nature innovative. Arbitration is a flexible and informal option that can be adapted to the specific needs of a dispute whilst at the same time ensuring that the parties have a full opportunity to present their case. Most of the arbitration process is conducted with little, if any, face-to-face contact with the arbitral tribunal.
Once the arbitral tribunal is constituted, a case management conference or procedural hearing is held usually by conference call, or sometimes video conference. The arbitral tribunal will issue a procedural order that includes a timetable for all of the steps in the arbitration up until the merits (or substantive) hearing. This will include the filing of statements of claim and defence, witness statements and expert reports as well as the disclosure of documents. Additional procedural hearings may be held via conference call if required. The merits hearing is usually held in person at a location convenient to the tribunal and the parties.
In most circumstances, existing arbitration proceedings will continue in accordance with the already agreed procedural timetables as parties and the arbitral tribunal work remotely.
New arbitrations may also be commenced as arbitral institutions continue to provide their normal services whilst working remotely. The secretariats of most arbitral institutions, such as ACICA, ICC, SIAC, HKIAC and LCIA have confirmed that they remain operational and that they continue to register and manage new and existing cases.
Face-to-face meetings are mostly being postponed. However, hearings and meetings can be conducted virtually. Some of the innovative solutions already in place or being implemented include:
- ACICA: virtual hearings can be held with the assistance of the ADC Virtual. ACICA's "Draft Procedural Order for the Use of Online Dispute Resolution Technologies" also provides guidance on how hearings may be conducted with video conferencing or Cisco WebEx Meeting Center. The Draft Procedural Order can be found here;
- ICC: all meetings of the Secretariat, ICC Court of Arbitration and the ICC ADR Centre are being conducted virtually. Virtual hearings can also be arranged with the assistance of the Secretariat and the tribunal.
- HKIAC: online dispute resolution is being actively encouraged. The HKIAC has an online platform to conduct e-hearings and online mediation using video or audio conferencing. It also has an online filing system for the submission of documents.
- LCIA: the LCIA has set up an online filing system for new cases.
Some arbitrations do not require a merits hearing and are decided "on the papers" only. For less complex disputes, or disputes of lower value, this may be a viable option in the current environment.
Many of the Australian courts already have online systems for the registration of new cases and the filing of applications, pleadings and evidence. For those courts, the challenges will be conducting directions and merits hearings online as physical attendance is restricted or suspended.
Parties are being encouraged to agree procedural issues and submit agreed orders where possible. Where agreement cannot be reached, some courts will conduct directions hearings by phone or video conference. For example, the NSW Supreme Court is conducting all hearings, including directions hearings, using its "online court" system. It is also conducting court ordered mediations by telephone with further options being considered and developed.
Similarly, the Federal Court is continuing to operate with the use of video and teleconference calls. Some courts in Australia do not have an online system. For example, there is no online filing system for the Supreme Court of Queensland.
However, the Queensland Supreme Court is encouraging parties to make written applications where possible and to use telephone or video conferencing to minimise the need for physical attendance in courtrooms.
Below is a summary of the current situation with respect to the main courts used for commercial matters:
Courts and ADR processes remain "open" and available to parties with disputes through the use of technology. Nonetheless, consider these tips for any existing or future disputes:
- consider the forum most appropriate for resolving your specific dispute in a cost and time efficient manner;
- be open to using mediation in a virtual world - virtual mediations are being praised for being as effective as in person meetings - in fact, settlements are being agreed;
- consider arbitration as it provides the parties with flexibility to adopt a procedure suited to the specific dispute, including the use of virtual hearings; and
- consider proposing procedural solutions that will assist courts in conducting matters online or through virtual hearings.
With the anticipated increase in disputes in the current environment, we will also see a welcome increase in the use of technology to resolve disputes in an efficient and timely manner.