Providing Equal Access for Virtual Mediations and Arbitrations: Understanding the “Digital Divide”

The “Digital Divide” identifies the gap between those who have easy and ready access to computers and the internet and those who do not. This divide has become more readily apparent during the pandemic, as individuals were pushed into their residences to “work from home” and students were similarly required to find a way to connect with their schools to “learn from home”.

The divide became even more apparent within the justice system. Court appearances that switched to remote forced litigants (and even more detrimentally, criminal defendants) to find or create methods by which they could use their devices (and stay within their data plans) to ensure that they didn’t miss a court date and risk dismissals of their cases, judgments against them or even the danger of bench warrants for the failure to appear.

Just as we struggle to recognize that there is food insecurity in a society that markets abundance, it is hard to accept that in the United States, there are still many who do not have computers, wi-fi access or sufficient data plans for their mobile smartphones. But it is these same individuals who are expected to simply “connect” and participate in the recently altered justice system that is attempting to carry on during a pandemic. There is a true concern over fairness in a process that is now based solely on the connectivity of the parties involved. Not only can there be a perceived bias against those who appear on a phone screen versus a computer screen but litigants who do connect remain fearful that they will be penalized or punished if their systems disconnect or their data plans run out in the middle of a court session, even while they sometimes are required to stay on ”hold” for hours.

Similarly, while there has been a strong effort to move matters out of the court into alternative dispute resolution, the same obstacles exist for those seeking a remedy through private arbitrations or independent mediations. Both systems are designed for digital access. Additionally, the lack of digital access can impact one of the fundamental elements of the ADR process, that of confidentiality.

Where digital access is limited, witnesses who testify may be forced to attend proceedings using shared spaces instead of private conference rooms. Further, negotiations that might otherwise be held in private may be pushed into public areas where parties may be restricted in what they can say. Finally, with limited access to phone or computer service, , some parties may only be able to be connected sporadically rather than during an entire hearing, which can directly complicate the process.

While there may not be an easy answer to this digital access issue, recognizing the problem is a significant first step. If arbitrators and mediators are aware of the issues before the hearings and sessions begin, it will be possible to remove some of the implied bias that may come from one party being able to easily connect compared to another party who cannot. Approaching the role of third party judge or neutral with more sensitivity to the digital access issue may create a more impartial and equitable playing field for those involved in the ADR process. Hopefully, such an open recognition of the issue can remove any stigma associated with such limited access and improve the environment needed to successfully resolve the pending dispute.