Dispute Resolution in the Covid Era

Dispute Resolution in the Covid Era

Bermuda, like every other jurisdiction, has been managing the effects of Covid-19 and the consequential need for physical distancing measures to be put in place, masks to be worn and in many instances for people to be working remotely. Indeed, Bermuda imposed on its residents a Shelter in Place order which applied throughout the month of April and is now making its way through a staged approach toward re-opening the Island.

As with many other sectors, dispute resolution regimes in Bermuda had to quickly adapt to the restrictions in order to be able to continue providing parties with the ability to address matters between them in a world where many attorneys and indeed, judges, are working from home. In this regard, Bermuda has kept pace with other jurisdictions with virtual hearings being scheduled to ensure that cases move forward. MJM’s Dispute Resolution Team has had experience with virtually run hearings and in fact, in two instances, participated in the first of these virtually run sessions of their kind in Bermuda.

MJM Director, Jennifer Haworth, was counsel for one of the parties in the first conciliation meeting facilitated by the Department of Workforce Development (the “Department”) pursuant to the Employment Act 2000. Allowing the parties to come together virtually to discuss the issues between them led in this instance to a resolution which permitted both parties to move forward without having to wait until the Island was fully open again. The conciliation meeting was conducted via Zoom arranged by MJM which permitted not only the parties and the Labour Relations Officer to be present but also trainees from both MJM and the Department were present to experience the process ‘first hand’. MJM also used Microsoft Teams as a means to have breakout discussions with the client when necessary.

Additionally, Jennifer acted for one of the parties in Bermuda’s first Court of Appeal hearing conducted virtually on Zoom. The Court of Appeal session would typically involve most of the members of the panel flying to the Island to be physically present for the duration of the session. In light of Covid-19, this was simply not possible. However, the virtual setting created by Zoom allowed counsel for each of the parties to participate from separate locations but also the Justices of the Court of Appeal to take part from their homes which were in separate time zones. The session, arranged by the Court of Appeal office in Bermuda, ensured that there was a test session for counsel beforehand, that there was a breakout ‘room’ for the Justices when needed during the course of the hearing and additionally that any members of the public who wished to could view the proceedings in the Zoom setting as well.

There are of course additional matters to consider when conducting virtual hearings. These can includes the sharing of documents (which of course can be done within the virtual setting), the potential need for breakout ‘rooms’ to allow for client or judge conferences, navigating any technological challenges (reverberation on microphones, slight delays, etc.) and ensuring that no unauthorized recording takes place. Additionally, some thought has to be given to the fatigue that comes from lengthy video calls. All in all though, Bermuda is addressing these matters to ensure that this technology is available and utilized to allow parties to come together and the dispute resolution regime to continue despite Covid-19 related restrictions.