The Impact and Lessons of the COVID-19 Crisis as Regards the Efficiency of Justice and the Functioning of the Judiciary—a View from the Mediator’s Lens

The European Commission for the Efficiency of Justice (“CEPEJ”) held an ad hoc virtual plenary meeting on 10 June regarding the impact and lessons of the COVID-19 crisis as regards the efficiency of justice and the functioning of the judiciary. The meeting looked into a range of specific issues including examining the contribution and particular added value of the CEPEJ in the post-pandemic period. Within a session analysing consequences of the lockdown of courts for judicial professions, Ivana Ninčić Österle, lawyer and mediator from Serbia, Member of CEPEJ, delivered the following contribution, from the aspect of mediators and mediation.

The COVID-19 crisis has arguably been the greatest challenge and opportunity that the mediation community has faced globally. While the outbreak has drastically affected the functioning of judiciaries throughout the world, the advantages of the flexibility that mediation provides are becoming ever more evident and used.

A meme circled the internet in the first weeks of lockdown asking “Who led the digital transformation of your company”? Options given were: the CEO, the CTO, and COVID-19. Of course, the last one was firmly circled. This equally applies to businesses across Europe and the world, but also to mediation practices, which, although at first reluctant, have at large embraced the benefits of ZOOM, which allows for breakout sessions with parties, and other online conferencing tools (Signal.org, freeconferencecall.com, jitsi.org, google hangouts, to name a few), discovering the benefits of screen sharing of documents, using of whiteboards, etc.

As the rest of life and business shifts to functioning online, it is logical to seek dispute resolution online as well. Here lies the comparative advantage of mediation, which is in its core a flexible, adaptable process. Moving online, with the consent of parties, is easier for this dispute resolution process, in which parties retain decision making powers, than for courts.

Three main points can be made regarding the advantages of mediation during this time:

1. Mediation can bring certainty in uncertain times. The efficiency of the procedure is a value in itself, especially as due to lockdowns, backlogs, etc. it is impossible to predict the potential length of litigation of the case.
2. With currently so many contentious legal issues caused by the disruptions of the pandemic, the resolution of which is uncertain, it is often more beneficial to focus e.g. in commercial disputes on the economic interests and partnerships, going forward. Therefore, a particular advantage of mediation is that it is a process that allows for creative solutions to emerge, and for economic interests to be considered and placed in the forefront.
3. Lastly, mediation is a more comfortable, flexible and supportive process. It may be conducted in a place of safety and comfort for clients, with flexible timing and reduction of costs. Even as courts open up, the perspectives of having to travel and attend hearings, wondering about an onslaught of a second wave or, on the other hand, wondering whether future hearings will be postponed, and when will the dispute really be resolved, are daunting in themselves.

The outcome of a mediation is not certain. It may lead to an agreement or not. However, the process is certain—it is agreed on with the parties and is structured with the aim to facilitate communication between them and allow clarity in the exchanges and constructive dialogue to emerge, in order to avoid a much longer and uncertain litigation.

COVID-19 has been heralded as a tipping point for mediation, and indeed, many successful stories have emerged. Disputes that are being resolved in online mediations since March 2020 vary from commercial disputes, especially regarding supply chains that have been broken, to family disputes, e.g. navigating dysfunctional relationships in a confined space. Such a shift is not only evident in countries where mediation is widespread, like the US and UK, but also for example, in Croatia, where the first online mediation in fact took place during lockdown.

However, it is important to stress that judiciaries, governments and international standard setting organizations such as the CEPEJ should now more than ever promote the use of mediation. Supporting mediators and establishing e.g. court related online mediation protocols will allow the courts to focus on the cases which are not suitable for mediation, and handle them more efficiently and thoroughly.This will help with both the backlog of cases but also with resolving certain cases in a more appropriate manner. Therefore, it will enhance access to justice.

Likewise, addressing new, pandemic-related issues, such as related to the signing of documents, i.e. enforceability of mediated settlement agreements signed in electronic form, to allow for a smooth process to be finalized online would also be helpful going forward. Certainly, the major difference between online and in-person mediation is that the clients’ environment is out of the mediator’s control, which can lead to issues with privacy and confidentiality. Mediators must adapt their protocols and carefully consider the new ethics issues. This is an area which should be of concern for regulatory bodies as well—whether they are states, independent associations or international organisations. Organisations such as the International Council for Online Dispute Resolution and the (US-based) National Center for Technology and Dispute Resolution have already made some traction in this regard.

Check out IMI’s Online Dispute Resolution quality criteria here. IMI Online Mediator Specialisation will be released shortly; in the interim, if you are an organisation delivering ODR training or assessment, see https://www.youtube.com/watch?v=semcdmRXbac.

Finally, it should be noted that at the end of the session the CEPEJ enacted a Declaration on Lessons Learnt and Challenges Faced by the Judiciary During and After the COVID-19 Pandemic which includes important principles highlighting the role of mediation in access to justice:

• Principle 2 (Access to justice)
  During a pandemic, locking down courts might be necessary to protect the health and safety of justice professionals and court users. It should be done in a careful and proportionate manner as it results in an important limitation of access to justice which is a fundamental principle of the Rule of Law. […] Greater consultation and coordination with all justice professionals (including lawyers, enforcement agents, mediators and social services) will help to ensure a good level of access to justice.

• Principle 7 (Forward looking justice)
  The COVID-19 pandemic has also been an occasion to introduce emergency innovative practices. A transformation-strategy for judiciaries should be developed to capitalise on the benefits of newly implemented solutions. Some aspects of traditional court functioning should be reconsidered (relations with media, level of use of new technologies, increased  recourse to alternative dispute resolution, in particular mediation). Transforming the judiciary for the future should be approached in a positive manner but always with respect for fundamental rights guaranteed in the ECHR. It would also be appropriate to maintain the necessary dialogue between all actors in the justice system and to take advantage of the new relations created between judges, prosecutors, court staff, lawyers, enforcement agents, notaries, mediators and experts at the time of the health crisis.