In 2023, the Court adopted a sweeping set of rules addressing the use of remote electronic participation related to judicial proceedings. Among the new rules includes Maryland Rule 17-106 which provides for Remote Electronic Participation for alternative dispute resolution (ADR) or a prehearing conference. Rule 17-106 instructs ADR practitioners, in consultation with the participants, to make format choices and provides five factors to guide decision-making. In finalizing the rules, the Judiciary recognized that ADR practitioners, and not the court, are best equipped to make process decisions.
Prior to the COVID-19 pandemic and court closures in Maryland, neutrals and parties used a variety of formats to conduct ADR processes, including the telephone, video, in-person, and combinations of these formats. The new rules codify this practice and provide guidance to the ADR practitioner when making forum determinations. Notably, the Rule adds five new factors for ADR practitioners in Maryland to consider. The criteria reflect many of the ethical principles from the 2020 Maryland Standards of Conduct For Arbitrators, Fact Finders, Neutral Evaluators, and Settlement Conference Practitioners, the Maryland Standards of Conduct for Court-Designated Mediators, and the 2022 Online Dispute Resolution Standards.
(1) the accessibility of the format to each party,
(2) the technological competency of the ADR practitioner,
(3) the ability of the format to provide for confidentiality of data and communications,
(4) party preference, and
(5) whether the format can be used in a manner that does not affect substantially the fairness of the proceeding.
These factors, taken in totality, provide information to guide the process choices that meet the needs of the parties, non-party participants, and the neutral.
Accessibility of the format
When evaluating access, the ADR practitioner should determine whether the parties have sufficient technology to access the remote electronic format. Despite the prevalence of technology in everyday life, a good portion of Maryland residents lack access to secure, private, high-speed internet. Even with access to the necessary hardware and software, technology literacy and confidence in its use continues to present challenges to participation. Accordingly, the ADR practitioner may need to consider any need for accommodations to ensure that participants with different resources and abilities can effectively access and use the desired remote format. Alternatively, when accessibility challenges are properly addressed, remote participation enables access for individuals with transportation challenges, work conflicts, child or dependent care needs, and accessibility needs.
Some questions to consider asking the parties during ADR preparation include:
- Do you have access to reliable internet from a private location?
- If ADR were to take place by video conference, what device would you use to participate? Computer, phone, tablet?
- If ADR were to take place at X location, would you have any challenges getting there that would be helpful for me to know?
- ADR can take place in person, by phone, or video. Are any of these formats more or less accessible to you?
Competence
A competency standard requires the neutral to look beyond familiarity and experience with a software platform. It may require the neutral to explain the software's use to a participant, handle technology barriers, effectively trouble-shoot typical software challenges, and maintain awareness of software updates. As neutrals increasingly conduct remote ADR processes, competency may shift to whether the neutral has the expertise to conduct an ADR session in person.
Some questions to consider during ADR preparation include:
- How will any process steps need to be modified on the remote format? For example, how will signatures be handled for agreement to participate forms and final agreements?
- How familiar is the ADR practitioner with the full functionality of the software, the required features for the remote format, and software updates?
- Can the ADR practitioner effectively provide technology assistance if needed?
- How can the ADR practitioner balance impartiality and assisting the participants with technology challenges?
Confidentiality
In evaluating confidentiality, the ADR practitioner should ensure that the format can reasonably maintain the confidentiality of ADR communications regarding data visibility, accessibility, storage, privacy, and transmission. Practitioners should consider whether the format provides the ability for separate conversations, either between the ADR practitioner and one party to the dispute, or for attorney-client conversations. In a remote environment the ADR practitioner must consider privacy to participate in remote ADR, responsibility in confirming confidentiality, and addressing compromises in confidentiality.
Some questions to consider during ADR preparation include:
- Do the parties have a private place where they can participate in ADR for the duration of the process without interruptions?
- Will the parties and their attorneys (or other persons) be in the same place during the ADR conference? If not, how do they plan to communicate with each other?
- What should the remote platform privacy and security settings be during the remote ADR conference?
- What are the ADR practitioner’s protocols for deletion of digital information?
Party Preference
The ability to engage in ADR through different methods and self-determination of the parties requires the neutral to inquire about each party’s desired format for participation in ADR. When the parties agree, the decision of the ADR process format may be simple. When parties disagree, the ADR practitioner must carefully weigh the drawbacks and benefits of each format option along with each party’s reasons for their preference. The other factors listed in Rule 17-106 may assist in the decision making.
Some questions to consider asking the parties during ADR preparation include:
- ADR can take place by phone, video conference or in person. Is there a format that you prefer?
- If ADR were to occur in one of the other formats, do you have any limitations to your participation?
- What do you gain by engaging in ADR by video conference/in person?
- What do you lose by engaging in ADR by video conference/in person?
- Would being in the same room as the other party impact your ability to fully participate in the process and speak on your own behalf without fear of retaliation?
Fairness
In evaluating fairness, the ADR practitioner should consider whether the format can be used in a manner that does not substantially impair the fairness of the process. This means that the selected format should not impact the quality and integrity of the ADR process or hinder access to justice. The neutral should treat all participants equally and strive to ensure that offline privileges and disadvantages are not replicated through remote electronic participation.
Some questions to consider during ADR preparation include:
- How does the format impact the opportunity for each party to participate in the process?
- Does the platform selected create an unreasonable advantage or disadvantage for either party?
- How might the use of a particular format give one party an informational or technological advantage over another?
Choices by the neutral throughout the ADR process often involve weighing a variety factors, and forum selection is no different. In adopting these factors, the Judiciary provided ADR practitioners with a framework for process participation choices. Options for remote electronic participation expand the opportunities for ADR in many instances but should still remain an option to consider along with other process choices. Rule 17-106 embraces the evolving landscape of ADR practice by establishing a framework for neutrals to balance the ethical standards and sets the bar for quality and effective court-connected ADR.