Given the COVID-19 crisis, North Carolina Chief Supreme Court Justice Beasley continued all Superior Court and District Court proceedings (with a few exceptions) until June 1. The Chief Justice and the North Carolina Dispute Resolution Commission (DRC) have further clarified that mediations fall within the definition of proceedings and are, therefore, also postponed. County Clerks of Court throughout North Carolina are postponing hearings and proceedings for varying lengths of time. North Carolina Appellate Court deadlines have now also been extended. Yet, legal disputes continue to arise. While relief in the traditional courthouse setting may be prolonged, here are three online dispute resolution (ODR) options immediately available to parties and their attorneys in North Carolina.
In light of COVID-19 and Justice Beasley’s order, for the time being, all mediations are required to be postponed or conducted remotely, if all parties consent. Rule 4 of the Mediation Rules allows for mediations to be conducted electronically if all parties consent. One of the advantages of online video mediation is the ability to see all the parties’ faces and read their body language. This allows the mediator the ability, similar to in-person mediations, to gather important information and understanding about the parties’ feelings and needs to facilitate discussions around what matters most to the parties. Although the North Carolina Dispute Resolution Commission (DRC) does not endorse any particular electronic platform for conducting mediations, popular ones include Zoom and WebEx. Zoom offers the host the ability to password protect the meeting, to lock the meeting once all participants are present, and to even conduct virtual break out rooms for caucuses with various parties. For more details, check out fellow DRC Certified Mediator, Ketan Soni’s excellent primer on Using Zoom for Mediations. Additionally, here is a helpful article about Zoom account settings and privacy considerations, written by Sharon Nelson and John Simek.
Mediation by Telephone
Even before COVID-19, although in-person mediations were preferred and strongly encouraged by the North Carolina Dispute Resolution Commission, the Rules for Mediated Settlement Conference and Other Settlement Procedures in Superior Court Civil Actions allow for mediations to be conducted by telephone, if all parties consent. The benefits of mediating by telephone include:
- It is often easier to align the schedules of the parties, their lawyers and the mediator for a short phone mediation than it is for a full day of in-person mediation.
- Telephonic mediation is available to any party with a telephone line without the need for a computer or internet connection.
- Telephonic mediation eliminates any security concerns.
- Cost Effectiveness
- Telephonic mediation eliminates the time and cost associated with travel.
- This approach can reduce the cost of more advanced preparation.
- It is easy to put one party on hold while engaging in a private caucus or gathering additional information.
There are also challenges to mediating by telephone, including the following:
- The lawyers may be inclined to prepare less, which is something the mediator will need to manage in order to ensure the same efficacy as an in-person mediation.
- The lawyers and parties may not take a telephonic mediation as seriously as an in-person mediation.
- The mediator will have to work even harder than during an in-person mediation to establish trust and rapport with and between the parties.
- The lawyers and parties may be more easily distracted by other matters in their homes or offices while on the telephone line.
In light of the COVID-19 pandemic, mediating by telephone is a viable option for resolving legal disputes, especially if internet connectivity access or issues pose an impediment to online mediation.
While online and telephone mediations utilize a neutral facilitator to assist with conflict resolution, collaborative law is a form of alternative dispute resolution (ADR) where all the parties and their lawyer advocates agree to engage in joint problem solving outside the traditional adversarial court system. Because this form of conflict resolution takes place outside the court system, it is not affected by the court-ordered postponements. Instead, these collaborative cases can and are still marching toward resolution. Fortunately, the two collaborative cases in which I am currently serving as counsel have not experienced any delays as we have switched to a Zoom platform to continue to facilitate a resolution for the parties.
Now perhaps more than ever, I hope that lawyers and neutral facilitators will counsel and guide parties to resolve their inevitable disputes within a relational framework that not only acknowledges but prioritizes the parties’ shared human experience and interconnectedness.