COVID-19 Guidance for ADR ServicesCOVID-19 Guidance for ADR Services
The Covid-19 global pandemic has certainly changed the way ADR Services are provided. Delays in the scheduling of arbitrations and mediations potentially diminishes the likelihood of prompt resolution of disputes – long considered one of the principle benefits of alternative dispute resolution.
Standard VI.A. of the American Bar Association’s Model Standards of Conduct for Mediators provides the mediator shall conduct a mediation “in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.” Section 4 of Appendix A to Rule 31 of the Tennessee Supreme Court Rules provides a mediator “shall not unnecessarily or inappropriately prolong a dispute resolution session if it becomes apparent that the case is unsuitable for dispute resolution or if one or more of the parties is unwilling or unable to participate in the dispute resolution process in a meaningful manner.”
Additionally, the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes as adopted by the American Arbitration Association, the Federal Mediation and Conciliation Service, and the National Academy of Arbitrators, provides that voluntary arbitration rests upon the mutual desire of the parties to develop procedures for dispute settlement which meet their own particular needs and obligations. In Section 5.A, the Code offers general guidance regarding hearing conduct: “An arbitrator must provide a fair and adequate hearing which assures that both parties have sufficient opportunity to present their respective evidence and argument.” In addition to this obligation, an arbitrator has an obligation pursuant to Section 1.C of the Code to “endeavor to provide effective service to the parties.” Nevertheless, Formal Advisory Opinion No. 26 of the National Academy of Arbitrators Committee on Professional Responsibility and Grievances provides that after consultation between the parties and the arbitrator, an arbitrator may proceed by way of video hearing without mutual consent and over the objection of a party.
All of this is to say that while both mediation and arbitration are generally voluntary and consensual processes, the age of Covid-19 requires active participation of all parties and the neutral in designing a forum which meets the needs and interests in the ADR proceeding in an expeditious fashion, while attempting to ensure the health and safety of all involved. To that end, Travis ADR Services is prepared to conduct both mediations and arbitrations in a remote/virtual format, while also maintaining the availability to conduct proceedings in-person, with appropriate safeguards.
For further information and guidance, see the following:
Federal Mediation and Conciliation Service, Video Arbitration: A Guide for Labor and Management Advocates, https://naarb.org/wp-content/uploads/2020/04/FMCS-Guide-to-Video-Hearings-for-Advocates.pdf
National Academy of Arbitrators, Committee on Professional Responsibility and Grievances, Formal Advisory Opinion No. 26, https://naarb.org/wp-content/uploads/2020/04/CPRG-Advisory-Opinion-26-4.2020.pdf
American Arbitration Association, Virtual Hearing Guide for Arbitrators and Parties, https://go.adr.org/rs/294-SFS-516/images/AAA268_AAA%20Virtual%20Hearing%20Guide%20for%20Arbitrators%20and%20Parties.pdf