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An outcome of the COVID emergency
  • Nov 25, 2020
  • Latest News

An outcome of the COVID emergency is that online ADR is now looking like it will be the future
But first, the telecoms industry must resolve its own disputes and deliver the technology infrastructure that is needed to make it happen.  

About 15 years ago, I attended a conference in central London where numerous evangelists gave presentations in support of mediation and other forms of ADR. I confess that I recall little of the details of what was said by the various speakers, except for one thing.

In the audience that day, sitting in the front row, was the recently appointed Master of the Rolls, Sir Anthony Clarke. During the morning session, he was invited by a speaker to take the microphone and say a few words. Sir Anthony spoke for a few minutes about his support for alternative dispute resolution (ADR). I recall he said (and I paraphrase this bit) that after a long career as a practicing 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 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. It is also affordable for small businesses and consumers who would otherwise be frustrated by the fact that the costs of litigation would probably be greater than the amount money that is 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 in either 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 avoid ending up in court and to use mediation and other forms of ADR instead. Over the years I have seen an increasing 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 is incremental improvements in the way ADR procedures are structured and delivered. In particular, more and more parties have been prepared to use technology to access ADR.  

The economic and social impact of the COVID emergency is giving rise to real and potential 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 the potential for a tidal wave of disputes as it encounters the challenges of the post lockdown recovery. These disputes could have a profound effect on the financial health of individual businesses and the wider economy. Expedient and 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 so with mediation, where the energy of the mediator is focussed on listening and talking to the parties. But the COVID lockdown has stymied the ability of disputing parties to engage in any form of procedure that involves travel to an office or other venue, and meeting people who are not part of the same household.

Parties are thus exploring new ways to access ADR. The COVID emergency seems to be driving greater sophistication and a rapid expansion of ADR via online platforms and video channels. We seem to be at the point in our evolution where most people are, or can be, sufficiently “tech savvy” to the extent that online ADR is easy for them to access and use. In the latter part of 2020, online ADR is providing viable options for both businesses and consumers to manage and resolve conflict from a desktop, or laptop.  

The prevalence in the latter part of 2020 of Zoom, MS Teams, Skype and other communications platforms 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 facilitated online, thus reducing the time and costs associated with travel and venue hire. But to if online and video ADR procedures are to be successful and become the normal in the future, the technology needs to be reliable.

Forgive me, but here is another anecdote. I recently attended an online webinar, which was on the subject of the future of technology in business transactions. The key point that the host was trying to get across was that the COVID emergency had given rise to a leap forward in the use of webinars and other electronic communication platforms as a way to do business. I say he was “trying” because the presentation webinar came to an early halt when the host’s internet connection failed completely. So, while the potential future for online ADR looks promising, it seems it will only happen if the technology needed to deliver it is in place and is working properly.

Recently, I discovered a genuine irony. It looks like 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 (a.k.a operators) and the owners of land on which telecoms installations are built. It seems relationships between operators and landowners have historically been strained. 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 legislation governing the sector, and the introduction of the Electronic Communications Code (ECC) in December 2017.  

The aims of 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 which deal with slow and costly disputes, would probably welcome an ADR solution for the industry that has real potential to reduce conflict and speed up the development and growth of the telecoms industry.  

To be viable, a bespoke ADR solution must be a simple and flexible process that can be adapted to suit matters of varying size and complexity. It must also be a process that both operators and landowners engage with. To help ensure this happens, the ADR solution must be actively supported by Government and the Courts.

In my view, online ADR is the future, but only if the telecoms industry succeeds in constructing the technology and services that will enable face-to-face ADR 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 who represent the various interests in the telecoms sector have started to explore ways to improve co-operation between landowners and operators and underpin this with a bespoke form of ADR. One idea is to ensure that an ADR solution 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 delivered. We will also sound out the Lands Chamber and the Department for Digital, Culture, Media and Sport (DCMS) and seek official support and encouragement for online ADR in the sector.   

Martin Burns
RICS, Head of ADR Research and Development
21 September 2020