COVID AND THE VIRTUAL ENIGMA

Taibjee Consultants > Blog > Covid > COVID AND THE VIRTUAL ENIGMA

Covid 19 as it is popularly known has now brought in a new set of thinking or has it? Everyone has now resorted to “Virtual” everything. Whether it is learning, webinars, meetings and the list is endless. There is this great enthusiasm and the urgent need to join the bandwagon to be part of the new concept that is taking over our lifestyle and work, thinking, shopping and so on. Many unknown people have emerged due to the Virtual phenomena to become overnight experts on almost any topic one can think off.

Therefore let’s try to understand what going Virtual means? Virtual learning/presenting is a learning/presenting experience that is enhanced through utilizing computers/mobile phones etc and/or the internet both outside and inside the facilities of any organization. The online sessions most commonly take place in an online environment. (Use of internet connectivity)

For those who were already internet savvy and were online whether through social media, searching the internet using various online application like online banking, various search engines, cloud storage and so on would probably not be too surprised by the sudden events of Covid 19 that the other vast majority are in the process to grasp.

I will discuss a few things that affected my profession and would pose the question: Is Africa or even the World ready for online ADR (Alternative Dispute Resolution)? There are several issues to consider and I will try to mention a few without going into too much details but only to ignite a thought process and a basis for individuals to make their own decisions on the pros and cons.

The entire basis of ADR is confidentiality in terms of privacy of the process as compared to courts and published judgments and that the system is party driven. Than how will the Virtual process protect these core issues?

  • When parties agree to an arbitration or mediation online one must be careful as an arbitrator of some of the following: a) is there is a written consent via email or hardcopy of the parties resorting to this use of online virtual meetings in the event the main contract during the signing has no mention of this method. B) Many of the local laws for example the Arbitration Act 1995 (amended) is void of this provision and one may need to look at this carefully before proceeding. C) Are all parties to the arbitration/mediation competent enough with the use of this technology?
  • Most of the servers are not based in Africa or in control of any parties and cannot be 100 percent secure in terms of the information leaking out. For example during and arbitration or mediation parties may in the caucus reveal information to the arbitrator/mediator that must be guarded very carefully as they are the trade secrets of that particular organization. In family mediation this becomes even trickier as how does one mediate such personal issues without any parties being physically present as it normally in my experience a very emotionally charged session. There is the issue of always not walking out of a meeting whereas in an online meeting this is very hard to control.
  • Internet connectivity for all parties, timing of the sessions especially for international mediations as the participants could be in different time zones, various equipment’s needed to have a successful session are some of the crucial considerations.
  • When it comes to experts and witnesses one must take extra precaution to ensure there are enough cameras etc to maintain the sanctity of the process and avoid witness couching and so many other factors that can compromise the arbitration/mediation.
  • Documents that are required in an arbitration/mediation can be very voluminous at times. To ensure each party is served, has enough internet capacity to download, the laws allow such service etc is something that the arbitrator/mediator must consider very carefully so as to ensure that the process is fair to all parties. Some of the areas that have changed in terms of technology due to Covid 19 effects in Kenya are a)E- Filing of documents in court which is now mandatorily online b) Electronic signatures are now legally acceptable c) Teleconferences in terms of court cases
  • International protocol like the UNCITRAL Rules and The Seoul Protocol on Video Conferencing in International Arbitration provide for the basis on best practices and quick resolutions to disputes of international nature. However, it’s important to note again all the points I have mentioned above as they all apply equally.
  • In Western countries the online mediation is a bit more advanced in the sense they have websites offering mediation and online ADR. They are normally categorized in basic areas a) blind bidding (Websites:- Cybersettle, CyberSolve, ClickNsettle and Settlement Now)and (b) discussion based processing of disputes. Zoomis a popular online platform that can be used for mediations and arbitrations.

How does one prepare for online ADR sessions?

  • Determine which platform is best for your case. In Kenya the most popular is Zoom.
  • As an ADR practitioner you will provide the appropriate paperwork to the parties prior to your session. Parties will need to agree in advance on issues such as whether the session can be recorded and whether all participants must be on camera.
  • Just as you would with an in-person mediation/arbitration, confirm that all parties and representatives have blocked off time and are fully prepared to participate in the videoconference at any moment.
  • Determine how you and your clients will communicate if you are participating from separate locations.
  • Determine what documents you intend to share and ensure that they are forwarded to the ADR practitioner before the session.
  • Ensure all the parties are on the same platform and have downloaded the application on their laptops or other devices.
  • All parties have a videocam facility
  • All parties have stable internet connection.
  • The rooms are well lighted and people fully visible.
  • Do a dry run or test run before the actual session.

Conclusion:

From the above an ADR practitioner must weigh in the advantages and the disadvantages based on the practicality of have such sessions. Mostly in Western countries the systems are set in place but definitely in my view they are also not there yet. In Africa we are not far behind the Western countries and still have a lot more distance to cover before one can confidently venture in to online ADR. There are a lot gaps both in technology and the training of the ADR practitioners on how to successfully conduct such online sessions. The respective organization will also have to engage the users of ADR services a lot more before people gain confidence in the system. Mistakes will be made as is the case with every new method but definitely laws and contracts will have to be amended to include virtual ADR as part of the new way forward.

By: Shafiq Taibjee Lawyer/Arbitrator/Mediator, Honorary Fellow (International Islamic Centre for Reconciliation & Arbitration.(UAE)