Mediation and arbitration are among the many services that the pandemic heavily influenced, if not completely transformed. Lockdowns forced mediators, arbitrators, lawyers and disputing parties to quickly incorporate online technologies and paradigms into their workflow — a sudden shift that quickly outstripped the achievements that online dispute resolution experts had been working on for years.
As a UNDP team member involved in promoting alternative dispute resolution (ADR) in Georgia, I was privileged to have the opportunity to observe and support this fascinating digital transformation. Our team worked with individual mediators and arbitrators and with ADR institutions to help them discover new ways of fulfilling their crucial roles. This blog includes some of the observations made during the process.
The EU and UNDP recently commissioned a study on the experiences of 120 clients of the leading ADR centers in Georgia (67 mediation and 53 arbitration participants). The research found that mediation and arbitration institutions rapidly and successfully transitioned to an online environment during the pandemic. For example, in 2020, 28% of mediation and arbitration sessions were conducted remotely; 78% of mediation participants and 66% of arbitration participants were satisfied with the service. It seems that Georgian ADR participants and providers see the benefits of remote operation and are willing to accept it as a standard along with the traditional mode of in-person engagement.
Can we assume that online mediation and arbitration will become commonplace in ADR?
Elene Orjonikidze, Mediation Center coordinator at the Tbilisi City Court, believes that remote sessions may become the ‘new normal’ of mediation. She told us that though the Center did conduct some online mediation before the pandemic, it was not a routine practice.
“We faced certain challenges, including technical issues. Besides, dispute parties were uncertain about mediation that happens outside a court building,” she said. “However, already in May 2020, we were fully ready to move online. Now we are using almost all available digital platforms depending on the needs of our clients.”
Orjonikidze firmly believes that the transition to a digital space was a success. “It may seem odd, but we had a higher settlement rate in 2021 compared to the previous years.”
Orjonikidze notes that many issues associated with the mediation process (difficulties in arranging the sessions, limited space, travel costs, etc.) simply disappear in the online space. “We will build upon this success and keep using online platforms in the future, but remote mediation must be justified case-by-case,” she says.
Baria Ahmad, a British mediator with vast experience in research and comparative practices, offers the same finding in her report prepared for the EU and UNDP. As Ahmad weighs in on the remote mediation benefits, opportunities and challenges, she notes that it encompasses far more diverse ways of communication than just delivering sessions online — in addition to video conferencing, remote mediation also includes conferencing by telephone, text-based communication and software systems designed for bidding. It can also apply automated software as a technical tool. While arranging the process, mediators need to consider whether parties and their attorneys are familiar and comfortable with different technical tools, and be prepared to provide support and technical guidance.
We asked David Edilashvili, Legal Counsel for the Georgian International Arbitration Center (GIAC), to share his thoughts on the future of virtual arbitration proceedings. According to Edilashvili, when the pandemic broke out in 2020, GIAC took several steps to ensure that online operations went smoothly and efficiently. Among other measures, GIAC adopted the Online Arbitration Protocol, introduced additional rules to be applied during online proceedings, assisted arbitrators and parties in accessing available online platforms, and provided technical guidance and instructions. “We will keep offering online services to our customers even after the pandemic,” he said.
Online dispute resolution techniques are being deployed around the world to resolve a wide range of disagreements, from consumer disputes and e-commerce issues to individual disagreements and citizen-state conflicts. Ahmad believes that owing to the rapid development of the mediation and arbitration institutions in recent years, Georgia is strongly positioned to pilot different remote dispute resolution options and services.
Remote dispute resolution offers the comfort of going through the entire process without leaving your home or office, saving time and travel expenses (reduced travel also leads to environmental benefits).
Can remote dispute resolution fully replace traditional face-to-face hearings, or will screen fatigue take over and push people back to the ‘old normal’? In a post-pandemic world, as both online and offline options will be readily available, will the choice be to Zoom or not to Zoom?
These questions are still open; we will see how events unfold. For now, it can be said that remote mediation and arbitration have proven their value to Georgian citizens and businesses, and that ADR institutions have risen to the challenge to provide efficient and safe service to their clients.
The European Union (EU) and UNDP are supporting Alternative Dispute Resolution (ADR) in Georgia as part of a wider Justice4All effort aimed at improving access to justice for citizens and businesses.