Reimagining Access to Justice: Should We Shift to Virtual Mediation Programs Beyond the COVID-19 Pandemic, Especially for Small Claims
15 NY DISP. RESOL. LAW. 42 (2022)
4 Pages Posted: 31 Mar 2022
Date Written: March 31, 2022
Since March 2020, and the start of the COVID-19 pandemic, courts around the country have grappled with the dramatic changes in how they function. Most courts in the United States were not prepared for such a sudden and extreme shift and many were stalled for months without any progress on the filings within their jurisdiction. Some courts were more successful if they had previously integrated automated systems before the pandemic, such as e-filing, video hearings, and other technologically supported protocols. Jurisdictions that already had Online Dispute Resolution (ODR) and video conferencing mediation and arbitration in place were able to continue to function. Other jurisdictions, particularly those that were ill-prepared, were stalled once the pandemic began. New York City’s Small Claims Court was completely halted in the beginning of March 2020. But in August 2020, under an Administrative Order by New York City Court Administrative Judge Anthony Cannataro, the courts initiated a new Presumptive Virtual Mediation Program in New York City Small Claims. The courts partnered with various law schools, bar associations, and community dispute resolution centers (CDRCs), and immediately began mediating small claims cases on virtual platforms.
The umbrella term ODR is a broad term that includes all uses of information and communications technologies to help parties resolve their disputes. It includes the online replication of ADR processes, including mediation, arbitration, or other ADR processes conducted wholly or primarily online. Some examples include: (1) cases assigned to a court mediator, who facilitates interaction between parties via asynchronous text-based exchanges through a dedicated court-provided system; (2) a judge reviewing court papers from litigants and making a decision based on the papers; or (3) video conferencing mediation, where mediators synchronously work with parties live on Zoom to facilitate a conversation, as seen in the Presumptive Virtual Mediation Program in New York City Small Claims.
Keywords: COVID-19, online dispute resolution, ODR, arbitration, mediation, virtual, Presumptive Virtual Mediation Program, New York City Small Claims Court
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