About 15 years ago, I attended a conference in central London where there were numerous presentations in support of mediation and other forms of alternative dispute resolution (ADR). I confess that I recall little of the detail of what was said by the various speakers, except for one thing.
Sitting in the front row of the audience was the recently appointed Master of the Rolls, Sir Anthony Clarke. During the morning session, he was invited to take the microphone and say a few words. I recall he said – and I paraphrase – that after a long career as a practising barrister and a judge in the civil courts, he had yet to come across a case that could not have been resolved using ADR.
ADR advantages
ADR offers several key advantages; most notably, it can be used for virtually any type or size of dispute. It is a cost-effective method for dealing with complex disputes involving large amounts of money. But it is also affordable for small businesses and consumers, who may otherwise be frustrated by the fact that the costs of litigation would probably be greater than the amount of money in dispute.
While some bigger enterprises may be able employ in-house lawyers, many businesses do not have the resources available for significant legal spend. Commercial managers and consumers alike are not normally schooled either in pursuing claims through formal litigation or responding to and defending claims in court.
I have spent most of my working life encouraging people who are involved in disputes in the built environment to use mediation and other forms of ADR to avoid ending up in court. Over the years I have seen a growth in the use of a wide range of conflict avoidance and dispute resolution procedures, each of which is designed to manage and resolve conflicts earlier, quicker and cheaper than litigation. What I have also seen are incremental improvements in the way ADR procedures are structured and followed. In particular, more and more parties have been prepared to use technology to access ADR.
The impact of the pandemic
The economic and social impact of the COVID-19 pandemic is giving rise to disputes across many areas of the built environment. Commercial landlords and tenants are at loggerheads about rents and other matters relating to their long-term relationships. The construction industry is facing up to a potential tidal wave of disputes during the post-lockdown recovery.
These disputes could have a profound effect on the financial health of individual businesses and the wider economy. Expedient, cost-effective conflict management and dispute resolution are becoming critically important to businesses of all sizes.
Traditional ADR procedures often involve parties meeting each other and their third-party dispute resolvers face to face. This is particularly the case with mediation, where the mediator is focused on listening and talking to the parties. But the lockdown has stymied the ability of disputing parties to engage in any form of procedure that involves travel to an office or other venue.
The transition online
Parties are thus exploring new ways to access ADR. The pandemic seems to be encouraging greater sophistication and a rapid expansion of ADR via online platforms and video channels. Most people are, or can be, sufficiently tech-savvy that online ADR is easy for them to access and use. This is providing viable options for businesses and consumers alike to manage and resolve conflict from their own computer.
The prevalence of Zoom, Teams, Skype and other communications platforms in the latter part of 2020 has set the scene for the future of ADR. Mediation meetings via video links are increasing in number. Parties and mediators can be much more flexible about when they meet, simply because no one has to travel. Preliminary consultations and hearings with parties in arbitrations and adjudications are also easily carried out online, thus reducing the time and costs associated with travel and venue hire.
But if online and video ADR procedures are to be successful and become the norm in future, the technology needs to be reliable. I recently attended a webinar on the future of technology in business transactions. The key point the host was trying to get across was that the pandemic had seen a leap forward in the use of webinars and other electronic communication platforms as a way to do business. I say “trying” because the presentation came to an early halt when the host’s internet connection failed completely. So, while the potential for online ADR looks promising, it seems it will only happen if the technology needed is in place and working properly.
An infrastructural irony
Recently, I discovered a genuine irony. It looks as though the telecoms business sector, which is crucial to the growth of online ADR, is itself in dire need of ADR.
Key to ensuring the success of telecoms and online ADR platforms is the effective management of relationships between those who install and manage networks and infrastructure – the operators – and the owners of land on which telecoms installations are built. But it seems relationships between operators and landowners have historically been strained.
RICS has made great strides towards helping to create a less polarised and fractious sector by underlining the importance of appropriate conduct and professional behaviour in its 2019 guidance note Surveyors advising in respect of the Electronic Communications Code – but there is much more to do.
Delays and disputes, some of which have led to inordinately long and costly legal action, have caused immense problems for the sector for years, and continue to do so despite recent improvements to the relevant legislation and the introduction of a revised Electronic Communications Code (ECC) in December 2017.
The aims of the government and regulators have been to simplify and speed up the process for installing and maintaining electronic communications networks. But it would seem that, thus far, the ECC has not improved the situation. The government, and the judiciary that deals with slow and costly disputes, would probably welcome an ADR approach that can reduce conflict and accelerate the development of the telecoms industry.
“The government, and the judiciary would probably welcome an ADR approach that can reduce conflict and accelerate the development of the telecoms industry”
To be viable, a bespoke form of ADR must be simple, flexible, and adaptable to suit matters of varying size and complexity. It must also be a process that operators and landowners alike engage with. To help ensure this, it must be actively supported by the government and courts.
In my view, online ADR is the future – but only if the telecoms industry succeeds in constructing the services that will enable meetings and consultations to take place without fear of the technology breaking down. The irony is that the telecoms industry is itself embroiled in constant disputes, many of which could be resolved using online ADR.
Recently, RICS and stakeholders that represent the various interests in the telecoms sector have started to explore ways to improve cooperation between landowners and operators. and underpin this with a bespoke form of ADR.
One idea is to ensure that an ADR process is not simply imposed on the industry, but is a product of consultation with stakeholders who would have a say in how it is designed and implemented. RICS has recently received official support and encouragement for online ADR in the sector from the Lands Chamber and the Department for Digital, Culture, Media & Sport.