The Covid-19 pandemic has changed almost every aspect of the society we live in. The law is no exception. It too is changing. Following mass transformations of many working environments and the expansion of communication technologies in education and governance, the legal realm has also become further involved with tech as a result of the Covid-19 crisis. 

How Covid-19 and tech have been changing the legal system as a whole could definitely be a significant discussion to have on its own terms.  But as the current global crisis is unfolding and transformation is underway, change over the form which the law takes “in practice” is not the only point that one could raise.   2020 has also seen an increasing public demand for radical change regarding the traditional criminal justice system as a whole. Demands to end mass incarceration, violent policing practices, and for the allocation of resources to education, healthcare and mental health question the role of policing and legal institutions fundamentally. In the face of these dire circumstances, alternatives are desperately required.

Outside of the Hollywood-famous traditional litigation practices, other legal methods of dispute resolution, like those included in the umbrella term “Alternative Dispute Resolution” (ADR), have emerged more vigorously as a supplement to the in-court legal system, which has been forced to adapt to the out-of-court settings required by Covid-19 public health measures.  They could be considered to be quite well-fitted for online use, and might be here to stay in a post-Covid future.  Could these alternative forms of dispute resolution be part of the change in the legal system that people would like to see? 

Firstly, I will go over what ADR is, how the legal system has been affected by the Covid-19 pandemic, and how ADR has in turn been further implemented through tech.  Second, I will consider whether forms of ADR can be a part of the change that the traditional criminal justice system could make to tackle the social issues that it is both contributing to the maintenance of and failing to address. 

ADR refers to a variety of methods that can be used to resolve disputes outside of the court system.  Some of the different forms of ADR include: mediation, negotiation, arbitration, and conciliation.  While ADR methods are often considered to be operating in an acceptably informal manner, legal disputes are very often resolved through some form of ADR.   Even before Covid-19, this field has been experiencing an increase in popularity.  ADR has some clear practical benefits, such as being a cheaper route to take than that of litigation where court and lawyer fees are very expensive and can also lead to unfair outcomes in terms of economic imbalances between the parties in a dispute.

 Mediation, considered to be the most well known type of ADR, will be the method that I will be especially drawing on in this article. This is also because mediation in particular has been widely adopted with the online conditions of legal practice, and provides an interesting point of discussion regarding the wider adoption of alternate processes of dispute resolution.   

Mediation can be defined as a “voluntary process in which a neutral third party assists disputing parties to reach a consensual solution to their dispute” and, as a type of ADR, is based on a few essential values that characterise the ADR system: voluntariness, fairness of the neutral third party, confidentiality, and process-pluralism. 

“Voluntariness” requires the parties to be voluntarily participating in the mediation process. “Fairness of the neutral third-party” demands that the mediator be neutral and fair in their assistance of the parties and in their facilitation of the phases of the mediation process, to assure the mitigation of power imbalances. “Confidentiality” requires that the mediation process is “conducted in private”. Finally, “process-pluralism” requires that there is a plural system of procedure, based on the premise that it is best when there are different ways through which different kinds of parties handle particular kinds of disputes, as opposed to a one-size fits all approach.

Drawing on the pillars of ADR, we can already see that there is a considerable difference between ADR methods and mediation and the traditional litigation system. This contrast is embodied by the figure of the mediator, whose primary function is that of helping the parties towards reaching an agreement about the dispute, as opposed to a court judge, whose power is “to render and enforce compliance of a judgement resolving the dispute”.   

The different goals of the third-parties in each of these processes also originates from the differing objectives of these legal practices more generally.  While the reason that people usually resort to litigation is essentially that of vindicating their rights, the aim of mediation is “reorient[ing] the parties towards each other” through “inter-party understanding” and “seeking to achieve a settlement”.   

Since the 1970’s mediation has witnessed an increase in its reliance by the courts, especially with civil law cases, and in its recognition outside of the United States.   While one could have supposed that civil mediation would now be more popular than it was 50 years ago, I doubt that somebody could have guessed what would accelerate its affirmation as a crucial player on the legal stage.   

In 2020, because of the various lockdowns, the almost complete halting of in-person work life, social distancing restrictions and the various other measures that have been implemented more or less similarly in every other workplace, the legal system has also had to adapt.  In the United Kingdom, in-court hearings had to be conducted remotely, in full or at least in part, to respect such measures - in June 2020, 90% of hearings were being held remotely.

Civil courts have also needed to use ADR processes through what is referred to as online dispute resolution (ODR).   ODR consists in “a form of online settlement that uses alternative methods for dispute resolution” and constitutes “an implementation of existing forms of ADR that enables its use on the Internet”.  Online mediation, which is the most popular form of ODR, has been a really useful tool to adapt to the necessities of the current times.   Moreover, this event has further demonstrated some of the practical benefits of mediation in a civil law setting more generally.    As previously mentioned, mediation, both online and in real life, can be used by the parties to try and solve their disputes more quickly and cheaply than through in-court litigation.  And it can also enable them to repair their relationship, by "talking through" their differences, and even create the premises for the relationship to work again.  

 However, whether online mediation is a wholly positive change does not have a straightforward answer.  On the one hand, it provides benefits such as cost, time and flexibility but, on the other hand, it may not always enable the organic interactions and dynamics that arise in physical encounters and could therefore fail to build the best conditions for the aims of mediation to be achieved.  “The rules of communication” in online mediation, like most social practices translated into the internet, can be considerably altered. And by changing the direct character and verbal elements that would normally allow a party in the mediation process to voice oneself as openly as possible, online mediation can be viewed unfavourably against its in-person counterpart.

As mediation is often relied upon for civil law matters, the case for the use of mediation in a criminal law setting is arguably more complicated.   Nonetheless, I will attempt to explore how it could potentially address the change that the criminal justice system has been increasingly socially demanded to undertake, by discussing mediation as a form of restorative justice.    This latter field, however, lacks the initiative that online mediation has experienced in the civil context.

Restorative justice can perhaps be more easily understood when placed in contrast to retributive justice: while the former concerns “the process through which parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future”, the latter is based on responding to criminal behaviour through the punishment of the offender, which is proportional to the seriousness of the crime committed, and the compensation of victims.   

“Restorative justice can take the form of victim-offender mediation” and in England and Wales, mediation is one of the restorative justice processes available. This method of dispute resolution provides a means for the people in dispute “to work out an agreement”, while assisted by the mediator who is in charge of managing the meeting and ensuring that ground rules are respected.   

The emergence of restorative justice as a new legal paradigm concurred with that of the abolitionist movements of the 1970’s, as a response to dissatisfaction towards the retributive criminal justice system.  At that time, restorative justice was conceived almost as an alternative to the retributive justice system, as it strongly opposed the reliance of the latter on “deterrent policies”, the conceptual premise that “sanctioning represents the only possible response to crime”, and its tendency of “confusing the real needs of prevention with practices of repression.” 

The abolitionist movement has been vocal again recently, in response to the ongoing dramatic effects of structural racism in societies across the world, which the criminal justice system is accused of upholding.  The abolitionist movement in fact, associates the very creation of the criminal justice system with “systems of colonialism, racism and economic exploitation”, and its current use of “structures of policing, prisons, and borders”, and views these factors as central to the persistence of these forms of discrimination.   

Restorative justice enables the offender in a dispute to have an attempt at “reparation” and to develop a positive action towards the victim.  Through the active “involvement of the parties in the quest for a conflict resolution that is satisfactory for those involved in it”, it also favours their mutual reintegration into society.  Studies on the use of minor criminal mediation in Italy, where mediation as a restorative justice mechanism lacks consistent legal regulation, demonstrate that recidivism diminishes after the mediation process.   This arguably proves the effectiveness of the use of mediation as a form of restorative justice for the purposes of allowing people involved in the process to resolve and move past problematic, unpleasant or sometimes tragic occurrences in a way that improves their opportunities for reintegration into society.  An outcome which is better achieved through a dignified mechanism, where parties take control over the outcome and are given the possibility to tell their stories, and have it be heard. 

Mediation as a form of restorative justice is a model that can be implemented in judicial, as well as social and educational fields.  It can even be merely used to complement the criminal justice system, while attempting to ensure justice is actually achieved, in its more profound, social meaning.   ADR could effectively be part of the change that the criminal justice system needs to make and that people are demanding.  It should have high currency in any discussions of legal and judicial reform in the wake of the Covid19 pandemic.

By Maria Alessandra Panzera