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Business Unusual – Construction Dispute Resolution in the time of COVID-19 and beyond

November 19, 2021

During my tenure as a professor, I had the privilege to attend a large number of seminars and conferences in several different countries around the world. I cannot remember when last I was so excited to attend a seminar as I was when I registered for this year’s West Coast Causality Construction Defect Seminar. The reason for my excitement was not only ignited by the fact that the seminar would provide a welcome opportunity to network with colleagues outside the monotonous realm of computer screens, which unfortunately became the norm in the time of COVID, but also to listen to and participate in discussions on issues that are shaping the future of the resolution of construction defects.

After attending the seminar, I am glad to report that my excitement was justified. A highlight was the panel discussions on topics that reflect how our industry adapted in a world of business unusual in the midst of a once-in-a-century pandemic. A panel discussion titled: Virtual Mediation and Arbitration – Today and in the Future, hosted by Keith D. Koeller, Esq., Karen Rice, Adrienne Cohen, Esq., Mark Gothold, Charles Litt, Esq., and Stacy La Scala, Esq., considered how dispute resolution has changed to adapt to the unique challenges in a world where face-to-face contact was no longer the medium of interaction. The panel members related how they experienced virtual mediation and arbitration in contrast with traditional in-person dispute resolution. By engaging in a discussion of the juxtaposition between these diverse mediums of resolving disputes a picture was painted on what the future of dispute resolution might look like.

Some fascinating interchanges took place on how panel members had to adapt to the new virtual medium from the perspective of legal counsel and the difficulties of residing over a dispute as a mediator. Challenges ranged from ensuring that no unauthorized attendees were present during virtual proceedings to witnesses appearing in their pajamas. In addition, the reliability of the technology and the learning curve associated with utilizing different types of virtual meeting software were problems that many panel members had to deal with.

From the perspective of an expert witness, the main benefit was having pertinent information available on multiple screens. The panel members agreed that the most advantageous aspect of virtual dispute resolution is that it limits travel time and cost. With all this being said the question remained on how this shift to a virtual environment will affect dispute resolution in the future. It seems counterintuitive to think that a worldwide pandemic, like COVID-19, can bring about new opportunities but the future of dispute resolution will indeed be shaped by our experiences during this trying time.

The future of dispute resolution will most likely unfold as a hybrid approach where traditional in-person dispute resolution is combined with some of the advantageous aspects of virtual dispute resolution. What this hybrid futuristic form of dispute resolution will look like remains to be seen but rest assured it will not be business as usual.

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