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Editor’s Note:  In this article series, seven leading mediators and conflict resolution practitioners share their unique voices on three pressing issues:  the impact of COVID-19 on their practices, workarounds being attempted, and their visions for the future in a post-COVID (or on-going COVID) world.  These contributors are speaking for themselves with their own original thoughts.  Their compelling words come from both their heads and their hearts.  Each essay is unique, yet each essay also confirms universal experiences and travails.  Oddly, collective challenges and painful experiences may stimulate progression within the conflict resolution community.  They may also lead to mediators taking action to familiarize the general community with the benefits of mediation.  Sharing personal experiences and truths, it is hoped, will inspire fellow practitioners to consider the new world and to re-invent their conflict resolution practices and services. 

The COVID-19 pandemic has resulted in widespread court closures and limited operations, promoting ADR suddenly and squarely into the forefront as the primary method of conflict resolution.  Perhaps the modern “conflict revolution,”^[i] beginning in 1976 with community dispute resolution programs in the 1960’s to address civil rights issues and continuing with the 1976 Pound Conference,^[ii] is about to undergo another phase.  If conflict resolution practitioners step up to the challenges, ADR may well come to the fore in the minds of the general public and not only with lawyers, insurance companies and commercial enterprises.  This may require re-thinking of old paradigms and becoming unstuck from old notions.  Mediators and conflict resolution professionals are being asked to adapt–and quickly–to the issues and circumstances of the day. The seven contributors bravely take a giant step forward by providing a chronicle of current conditions and by offering visions of the future.

~ Articles Assembled and Edited by Gregg Relyea

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Arbitral Community Mobilizes to Adapt to the COVID-19 Crisis through Increased Use of Electronic Proceedings

It started sometime in December, 2019 like a bad dream, happening somewhere far off in faraway China – 6,164 miles away. 

A strange virus (Corona Virus 2, a severe acute respiratory syndrome) was leaving death, sadness and tears in its wake.  The Wuhan seafood market in Eastern China initially was identified as the source. On March 11, 2020, the World Health Organization (WHO) officially declared the COVID-19 outbreak a global pandemic (by then, WHO had announced the official name as COVID-19). The virus previously thought limited to China had become a truly global pandemic.

The European countries of Italy and Spain were the first jurisdictions outside of China to be badly hit and then the horrors in the United States started. I thought of the arbitral community and my friends involved in conflict resolution, as well as colleagues all over the world. I was concerned about our regular meetings in different jurisdictions, felt concern for their safety and wondered whether things would ever return to normal. I wondered what the new normal would be.  One by one, notifications of postponements of arbitral related meetings and events I was scheduled to attend filtered in[ii].

It was speculated that this silent unseen enemy could not thrive in hot tropical weather but then the virus got into Africa.  Egypt recorded the first case in Africa on February 14, 2020.  The first case in Nigeria, confirmed on February 27, 2020, involved an Italian who worked in Nigeria and recently returned from Milan, Italy. The case was managed successfully at the Infectious disease hospital and the patient was subsequently discharged. Nigerians got prepared to deal with the virus and contain its spread, as did other parts of Africa. Talk of a lockdown started. Nigerians began stockpiling food, water, medication and getting ready to work from home. Lockdown was declared to commence in Lagos, the commercial center of Nigeria, on March 26, 2020 for an initial period of 2 weeks. From that day forward, our busy lives stopped.  Our professional calendars had to be strictly followed, yet physical interaction previously was thought to be required to carry out our obligations, which included jetting off to foreign lands, getting into your car for physical meetings, and complying with timelines.  The new norm of social distancing put a stop to it all.

Nigerians love to celebrate.  Social interaction is deeply cherished.  Weddings and funerals usually are large gatherings where the number of people attending an event can easily exceed one thousand people. Now, the Courts of Justice were on lock down.  It all stopped!

Has it all been so bad – I think not. Even in these challenging times, one begins to truly appreciate the important things in life before life got so busy and the air so congested. These include family, friends, less traffic, less pollution, silence, quality time in solitary company to rethink life, time to think of the less-privileged and make one’s input, to strategize, to prepare for the new normal, to spend more time in the company of our creator, fully dependent on our creator appreciating the very air we breathe, which many of us have taken for granted.

Family wise, even as we spare our thoughts for those who are alone, the importance of family and friends comes to the fore.  I, a busy lawyer and arbitrator having built up my career over the past four decades, my husband an equally busy Justice of the Supreme Court of Nigeria and our two sons, were now locked up in our home in Lagos enjoying each other’s company without the routine timelines and busyness. My daughter and our son-in-law lived not far from us in their apartment with our two lovely grandchildren – the times we used to see our grandchildren were to dwindle greatly.  We cherished the voice and video calls as all of us found ourselves working from home and appreciating the family time and occasional drop offs of food by our son and daughter. This lockdown had to be respected. The world changed, hopefully for only a while, as scientists raced against time – a cure, a vaccine — this nightmare must end but with lessons learned.

The versatility of arbitration came to the fore as I continued working on my arbitration matters from home.  Arbitration is not new to Africa but is the traditional and cultural manner of dispute resolution in Africa, before the advent of a colonial court system that remains part of our legal system. Hon. Justice Oguntade, Justice of the Supreme Court (Ret’d.), as Justice of the Court of Appeal JCA pronounced thus in Okpuruwu  v. Okpokam (1998) 4 NWLR (PT 90) 554  at 586 :

In the pre-colonial times before the advent of the regular courts, our people (Nigerians) certainly had a simple and inexpensive way of adjudicating over disputes between them. They referred them to elders or a body set up for that purpose. The practice has over the years become so strongly embedded in the system that they survive today as custom.

Modern arbitration, premised on the principles of party autonomy with its expediency and flexible procedures, is strongly supported as the answer to congested courts in Nigeria.  Prior to COVID-19, in arbitration, it was commonplace for online proceedings to be held, including case management conferences, preliminary meetings and pre-hearing conferences.  Neither was it unusual for cross-examination of witnesses to be conducted online where the circumstances justified it. I have personally been involved in virtual case management conferences, preliminary meetings and cross-examination of witnesses – a witness who could not travel for health reasons. The international nature of dispute resolution through arbitration, often with geographical distance between the parties, requires it.  Examples include the use and filing of electronic correspondence and documents, in addition to the hard copy filing and bundles. Signing of awards in international arbitration is normally in soft (electronic) form and hard copy.

In the COVID-19 social distancing world, virtual meetings came to the rescue.  The role of virtual arbitral proceedings quickly moved from valuable to essential.  There has been an even greater reliance upon virtual arbitration than before and it is expected to continue to grow. 

The arbitral community appeared well-prepared.  Protocols and guidelines were promptly issued to deal with the new normal and any challenges that may arise. The Chartered Institute of Arbitrators issued Guidance Notes on Remote Dispute Resolution Proceedings covering a broad range of technical, logistical, legal and procedural matters.  The guidelines offered a very helpful checklist of items for consideration. The scope of the Guidance Notes includes other forms of dispute resolution apart from arbitration, e.g., mediation, adjudication, negotiation, expert determination, dispute boards or any other type of dispute resolution. These guidelines brought to the fore challenges that may be encountered in the course of remote proceedings, including the necessity for a reliable electricity supply (sometimes a luxury in some parts of Africa, including my dear country, Nigeria) and a stable and secure Internet connection.

Did the writers of the Seoul Protocol on Video Conferencing introduced at the 7^th Asia Pacific ADR conference held in Korea in November, 2018 know just how vital the protocol was going to be in the reality of the 2020 pandemic? Indeed, that conference produced a viable guide for planning, testing and conducting video conferencing. The guide included basic tips, e.g., the need for clear quality and audible transmission, compatibility between hardware and software and testing of equipment well in advance of the hearing.  Non-adherence to the tips could result in catastrophe and embarrassment in the course of a remote proceeding. Working groups of professional arbitrators were established to address cybersecurity issues surrounding the arbitration process.[iii]  Arbitration providers developed additional checklists for conducting arbitration hearings during COVID-19.[iv]

The leading arbitral institutions rose to their responsibility in providing guidance. The International Chamber of Commerce (ICC) and the International Court of Arbitration released guidelines to mitigate coronavirus delays on arbitral proceedings. The advent of COVID-19 further confirmed the unity between arbitral institutions.[v]

Africa was definitely not to be left out. The African Arbitration Academy issued its Protocol on Virtual Arbitration Hearings in April, 2020 offering useful tips on conducting arbitral proceedings bearing in mind the special needs of Africa.  The protocol in recognizing the special technological needs in Africa stated:

…where any of the parties do not have access to the technology… parties may solicit arbitral institutions or other centers in Africa that can offer their venues for conducting virtual hearings. The technological and connection services offered by arbitral institutions or centers are often reliable and can provide the necessary equipment, software, high quality internet connection, and minimal chance of signal interruptions….

The Nigerian judiciary took steps to ensure justice delivery in the wake of the lockdown of the courts. The Chief Justice of Nigeria constituted a committee in order to ensure that courts continue to work in the era of social distancing. The committee, headed by Supreme Court Justice Bode Rhodes-Vivour, Commander of the Federal Republic of Nigeria (CFR), issued remote court seating guidelines that have been approved by the Chief Justice, making remote hearings part of the Nigerian judicial system. The first remote court proceeding in Nigeria was conducted in the Lagos High Court when judgment was delivered virtually for the first time in Nigeria pursuant to the Lagos State Judiciary Remote Hearing of Cases COVID-19 Pandemic Practice Directions. Nigerian courts have again borrowed from the practice in the arbitral community, firstly incorporating case management into various high court rules in the past couple of years and other innovations, including the courts substituting filing of witness statements in place of time-consuming examinations in chief.

These times are challenging and the arbitral world appears ready to take on the challenge of a COVID-19 world.  The hope is that, post COVID-19, the beauty of love, joy, unity and togetherness replace the ashes of death, tears and sorrow.  Hardly any family is not touched by the tragedy. I received news that a family friend, a distinguished Doctor of Laws and distinguished Nigerian scholar from a renowned family passed away in London, England. Weeks later, my brother tragically passed on from COVID-19 related complications in the United Kingdom. The tragedy is monumental and mounting.

The statistics of fatalities are alarming, the analysis astounding.  Questions are being asked, questions that deserve answers–why is there such a disparity on the international scene in the number of fatalities based on economic and social status? Why are more people of color, blacks, ethnic communities, minority and Asian backgrounds dying compared to others? Is it a result of lack of vitamin D in the blacks, a result of blacks living in crowded communities where social distancing is more difficult to maintain, or a result of the access of black and poorer people to healthcare and resources? Can anything be done to better protect health care workers? Why is that, in countries like Nigeria, the, less privileged, irrespective of the danger of infection and possibly death, were crying for the lockdown to be lifted? Crying for food? Why has the healthcare delivery system in some African countries been so neglected?

My expectation and hope as we rise from the ashes of COVID-19 is that African countries emerge stronger, rebuild their healthcare and infrastructure, make judicious use of their vast resources to the benefit of its people,  and address electricity and power concerns as a means to economic development.  In this way, Africa can devise ways of becoming more self-reliant yet living in unity with the world and contributing in return.  Moreover, Africa can address the disparity in economic and social levels of its people, bridging the gap between the haves and have nots, and going back to a world of compassion and right values. It is my expectation that our justice delivery system will learn from the world of arbitration and alternative dispute resolution (ADR) in achieving a more expeditious administration of justice in our journey to the 22^nd century.

ENDNOTES

[i] SAN signifies that Mrs. Doyin Rhodes-Vivour is a Senior Advocate of Nigeria, which is the equivalent of the British “Queen’s Counsel,” the highest designation for legal advocates.   C.Arb denotes a Chartered Arbitrator, a title conferred by the Chartered Institute of Arbitrators headquartered in the United Kingdom.   She holds LLB and LLM degrees from the University of Lagos and an MA with Merit in International International Peace and Security from King’s College, University of London.

[ii] Postponements included the International Bar Association (LCIA) 23rd International Arbitration Day and the London Court of International Arbitration Symposium scheduled for March, 2020 in Turkey, the International Council for Commercial Arbitration 2020 Edinburgh conference, the LCIA Tylney Hall Symposium set for September, 2020,  The African Arbitrators Association (AFAA) conference scheduled for June, 2020 in Ghana, the International Chamber of Commerce Paris 5th Africa  Conference set for June, 2020 in Lagos and the LCIA Pan-African Council event also scheduled for September in Kenya.

[iii] The ICCA-NYC Bar-CPR Working Group’s 2020 – Cybersecurity Protocol for International Arbitration reflects the culmination of two years of work by a working group on cybersecurity in arbitration proceedings consisting of representatives of the International Council for Commercial Arbitration (ICCA), New York City Bar Association York (NYCB) and the International Institute for Conflict Prevention and Resolution (CPR). The goal of the working group was to provide a framework to guide tribunals, parties and administering institutions in their usage of information security measures that are reasonable to apply to a particular arbitration matter.

[iv] Delos, the Global Arbitration Review [GAR] award-winning arbitral body, also provided the arbitral community with a checklist on conducting arbitration and mediation hearings in times of COVID-19, which was released promptly on March 12, 2020 with an updated version on April 3, 2020.

[v] A joint statement was issued by arbitral institutions including the Cairo Regional Center for International Commercial Arbitration ‘recognizing that these are challenging times and recognizing the joint ambition of the institutions to support international arbitration’s ability to contribute to stability and enforceability in a highly unstable environment, including by ensuring that pending cases may continue and that parties may have their cases heard without undue delay.’