Canadian Bar Association, BC Branch
Victoria Family Law Section Presentation
Jennifer A. Cooper, Q.C.
Cooper Family Law
April 28, 2020
With the courts closed for all but truly urgent matters, lawyers have stepped up to assist clients with online methods of dispute resolution. This paper reviews the main available options and how they may have changed.
Once social distancing measures were put in place, most mediators did a hard pivot from in-person to online dispute resolution, or as we now refer to it, ODR. The program of choice is Zoom. It has the advantage of being free for clients to use. Also, many clients are using it for social and work reasons, so it is becoming increasingly familiar. From the point of view of mediation, it has two important features, which the old videoconferencing programs didn’t have:
- The breakout room feature which allows the mediator to easily meet separately with one side, or with counsel only, or to facilitate counsel meeting privately with their clients to review proposals etc.
- The screen sharing feature which allows all parties to place documents on the screen for everyone to view at the same time. This works in “real time” so that the document can be something which is being modified – such as developing terms of settlement. There is even a whiteboard function if people want to usual visual images.
After the initial rush of embracing Zoom, some people found ways to breach security and there was some “zoom-bombing” going on, which meant essentially unwanted visitors in meetings. This appears now to have been resolved and you will find that your mediator today will likely:
- Send an invitation with a 11-digit meeting ID and a password specific to your meeting alone,
- Invite you first into a waiting room where she can check that you are an authorized attendee, and
- “Lock the door” after everyone is assembled to prevent anyone else from entering the videoconference.
Recently the BC Court of Appeal and the BC Law Society both announced that they are using Zoom for their hearings which is a vote of confidence.
Apart from mediations taking place online, it is basically “business as usual”. Mediators are still doing separate domestic violence screenings prior to the mediation, albeit by video or teleconferencing, Notices of Mediation are still being served, and counsel are getting increasingly used to working on-line. Most mediators are doing a separate test run prior to the actual mediation to make sure that everyone’s technology is working, and they are not charging for this service. Some mediators will also help counsel get familiar with the technology, again without charge.
Some counsel are taking the time to train their clients on Zoom where that is needed, and are not charging for this service. Some counsel are agreeing to have their client in the room with them during the mediation, because the client is feeling insecure about being alone during the mediation and with an unfamiliar technology. This may change over time as we all get more comfortable.
One other thing to keep in mind: the Justice Access Center is still operating with telephone mediation, and Mediate BC has a special COVID mediation program running at this time.
With the courts closed for trials, some counsel are taking a hard look at whether Med-Arb might be preferable to mediation for matters which require the certainty of resolution. Trials this spring have been cancelled and there is a sense that even if you have a trial date secured for next fall or winter, once the courts open again you might get bumped to permit previously cancelled matters to be heard first. This starts to feel like too long for some clients to wait.
Sometimes one party wants to move the matter to resolution which the other is content to wait. Perhaps the status quo is advantageous to them. Unlike mediation, where you can force the issue, arbitration is totally consensual. Some counsel are serving notices to mediate using Med-Arbitrators in hopes that once the clients work with the neutral and begin to see progress and experience confidence in the professional, then the matter will move over by consent into an arbitration process for any unresolved issues.
The Med-Arb option is often preferred to straight arbitration in order to permit the possibility of settling at least some of the issues in what is often a multi-issue file. This combined process gives a “straight line to the end” where a resolution will be achieved without fear of being bumped or waiting in line.
There are three challenges to online arbitration which family law counsel are often concerned about:
- Document management, particularly if counsel is not running a paperless office. In order to show documents to witnesses, either multiple paper binders must be prepared and distributed, or documents must be individually scanned and saved so that they can be retrieved and shown to witnesses during questioning. This is where the document share function of Zoom is helpful. Some counsel are using a separate screen such as an iPad for document storage and retrieval during hearings.
- Making credibility findings, where this is an issue on the file. Through lack of familiarity, some counsel and arbitrators are concerned that they will be unable to pick up the nuances that go into findings as to credibility. Some arbitrators are reporting increased assistance in this area because the screen gives a close view of the face of the witness and often people seem to forget that they are being viewed close up in this way. Counsel are getting experience dealing with witnesses and credibility by using Zoom for their examinations for discovery.
- Working in a separate physical space from their clients, particularly when they are concerned about “client management”. This is where the breakout room function is imperative, to give counsel the opportunity for private sidebars. Client preparation is also key.
Some counsel have chosen Med-Arb in the past for the privacy and control over the process that they are able to exert, as compared to within the court system. With the current closure we may see more files opting for this resolution method in order to achieve certainty of result.
With a view of increasing access to justice during these difficult times, some Victoria family law arbitrators have decided to offer online arbitrations while the courts are closed to important but non-urgent matters. These arbitrators will decide one interim matter for a fixed fee of $1000, plus tax. This process is anticipated to take approximately 4 hours and will include:
- Conduct of 2 domestic violence online screening meetings,
- Review of 2 affidavits of not longer than 5 pages focused on the single issue,
- Review of written submissions OR a time limited online hearing of 20 minutes for submission, 15 minutes for reply, and 10 minutes for rebuttal, and
- Provision of a written decision with summary reasons within 3 business days.
If a lengthier or multiple issue arbitration, or arbitration for a final award is required, most Arbitrators will speak to counsel without charge in order to discuss other process options and costs.
D. Parenting Coordination
PC work typically proceeds with online dispute resolution: either by email, or teleconference, or sometimes video conferencing, or all three. As such, not much has changed in this area. For high conflict couples who are using this service, sometimes meeting in person may make it difficult for the parent to regulate their emotional responses. As such, video conferencing from separate spaces, or just sharing audio through teleconferencing, can be advantageous. Further, the quickness of email can be helpful for the resolution of what can be small issues. Email is also asynchronous, which means that people have time to read and consider proposals before replying. This is often helpful with high conflict parents who may react emotionally at first and need time to calmly consider options.
In the absence of court accessibility to decide ongoing parenting issues, it may be that files referred to Parenting Coordination will increase.
Counsel involved in resolving files by collaboration are also largely using Zoom. They are reporting that with the multi-person meetings that are often required (clients, counsel, their coaches and perhaps a Financial Specialist and/or a Child Specialist), it is easier to get people together. The screen share function for documents is also very helpful for keeping people “on the same page” so to speak.
In these unusual times, lawyers are working hard to meet their clients needs, and this includes careful consideration of process options as some of our old options have disappeared. We are called upon to have a positive, flexible mind-set in the midst of this uncertainty. Technology at home or even at the office which was working fine is suddenly not good enough when we need quality microphones and cameras and lots of internet speed. We all need to work together to help ensure that clients get a timely resolution to their dispute and feel heard and fairly treated in their process.