The Commission’s Strategy

The Commission is currently conducting its second pilot using the video platform Modron Spaces for some hearings. Although online hearings were initially a response to the pandemic, the Commission’s experience demonstrates that online dispute resolution cab be effective when conducted on an appropriate platform by persons who are comfortable using the platform. The Commission is grateful that it has been able to continue to deliver its services without interruption during the pandemic while its traditional venues are closed.

The Commission will select a platform/s following the current pilot and it will increase its use of online dispute resolution in 2021. The Commission will continue to use online dispute resolution after COVID-19 ceases to be an issue - the Commission’s hearing venues will be comprised of a mix of telephone, video (online) platform.

The Commission understands that online dispute resolution is not appropriate in all cases and there will always be a role for in-person hearings. The Commission does not purport to be a source of Thought Leadership at this stage of its online dispute resolution journey – it does however refer Commission users to the Thought Leadership references below.

Some Background

In-person hearings and mediations ceased in the Commission on 21 March 2020 and were initially replaced with telephone, except on successful application for in-person hearings – Practice Direction 18 governs applications for in-person hearings – see: https://www.wcc.nsw.gov.au/legal-resources/practice-directions/practice-direction-no-18-hearing-of-proceedings

The Commission quickly recognised the need to supplement telephone hearings with video and accordingly, it initially used MS Teams on the request of the parties. Although quite successful, MS Teams does not offer private rooms (as at the date of writing) and therefore it does not currently provide a digital venue that replicates the Commission’s traditional physical venues.  Accordingly, the Commission searched for video platforms with private rooms and strong confidentiality and cyber security – it decided to pilot the use of the video platform, Modron Spaces https://www.modron.com/. The outcome of the Commission’s first Modron pilot is discussed below together with details of the currently operating second pilot.

Link to the President's two articles

Under Construction

Remote Courts Worldwide - https://remotecourts.org/

This website is designed to help the global community of justice workers - judges, lawyers, court officials, litigants, court technologists - to share their experiences of 'remote' alternatives to traditional court hearings. It includes news, commentary and case law (as it relates to the use of digital hearing venues) as well as user stories and country specific materials.

The Practice – Harvard Law School
https://thepractice.law.harvard.edu/article/the-future-of-courts/

Justice Connect - Benefits and Pitfalls of Remote Courts

https://justiceconnect.org.au/resources/how-do-i-prepare-for-remote-court-hearings/

https://justiceconnect.org.au/as-remote-courts-become-more-common-these-are-the-benefits-and-pitfalls/

Law Firms – a selection of articles

Ashurst - https://www.ashurst.com/en/news-and-insights/legal-updates/the-remote-courtroom-tips-and-tricks-for-online-hearings/

Clayton Utz - https://www.claytonutz.com/knowledge/2020/october/q-a-from-the-court-room-to-the-lounge-room-advocacy-in-the-virtual-world

https://www.claytonutz.com/knowledge/2020/september/nsw-launches-remote-witnessing-pilot-scheme-treasurer-remakes-e-signing-arrangements-for-companies

https://www.claytonutz.com/knowledge/2020/april/to-adjourn-or-not-to-adjourn-courts-say-the-show-must-go-on

https://www.claytonutz.com/knowledge/2020/june/appearing-in-the-administrative-appeals-tribunal-during-covid-19

JUS MUNDI Blog A collection of online resources on virtual hearings

https://blog.jusmundi.com/a-collection-of-online-resources-on-virtual-hearings/

E-bulletin 104 ( https://www.wcc.nsw.gov.au/publications/e-bulletin/2020-e-bulletins/e-bulletin-no.-104-june-2020 ) described the Commission’s physical and virtual venue strategy and outlined the First Modron Pilot.

During the First Modron Pilot, the Commission also used MS Teams and investigated other online platforms, including Immediate and Zoom. The First Modron Pilot demonstrated:

• The need to further test Modron Spaces and investigate Zoom.
• Arbitrators, mediators and the legal profession (Users) would need training, strong concierge support and more experience using online dispute resolution, before they are comfortable.
• Arbitrator and mediator attitude to online dispute resolution, and their technical competence are critical to successful online dispute resolution.
• Most Users quickly move from being hostile or ambivalent about online dispute resolution to supporting it – the keys to that journey are:
  • Receiving Support – Training and access to a strong concierge service;
  • Acceptance that online skills are the new literacy – Some Users declined to acquire online skills, preferring to wait until “things get back to normal” – as noted in e-bulletin 104, the Commission will continue to use some online dispute resolution after COVID-19 recedes and it will provide accreditation to Users who train in its preferred online platform (once selected). Non-technical training will be delivered, including sessions by NIDA about performance and advocacy in an online environment.
  • Attitude – Willingness to learn and accepting that mastery will not be immediate;
  • Internet – Access to internet connection which offers reasonable speed and is reliable during video conference (some Barristers Chambers provide poor access and the Commission is working with the Bar on this issue); and
  • Equipment – Access to a device with a good quality speaker and microphone (preferably, through a headset) and a camera.

The Second Modron Spaces Pilot

E-bulletin 108 (https://www.wcc.nsw.gov.au/publications/e-bulletin/2020-e-bulletins/e-bulletin-no.-108-september-2020) gave details of the Second Modron Pilot which commenced on 3 September and will cease on 18 December 2020.

The Purpose of the Second Modron Pilot

The Second Modron Pilot aims to increase the Users who experience the platform to assist the Commission decide which video platform will most likely deliver a successful virtual venue for online dispute resolution. A successful virtual venue will deliver the following outcomes relatively quickly after adequate training and concierge support:

• Users will confidently conduct their events without being distracted by managing the technology associated with a virtual venue.
• Arbitrators and mediators will confidently guide participants in their use of the platform and ‘normalise’ the conduct of events on a virtual platform for participants.
• Legal practitioners will confidently guide their clients and ‘normalise’ participation in a mediation or conciliation/arbitration on a virtual venue for their clients.

Duration and the Number of Matters

The Second Modron Pilot is running from 3 September to 18 December 2020. The Pilot is scheduled to conduct 90 matters, and this will be increase based on demand. Users are increasingly seeking online dispute resolution where cross-examination is involved.

Events and Participants on the Pilot – How do you list a matter on Modron?

Conciliations/Arbitrations will be conducted on Modron where agreed by the Arbitrator and parties. Typically, this will be discussed at the Telephone Conference stage. All Arbitrators are strongly encouraged to participate. If an arbitrator wants to list a con/arb on Modron, they should obtain the parties’ in principle consent at TC, and let them know the Commission will confirm the arrangements (i.e. the matter will be heard on Modron is a place is available that day – all efforts will be made to list where requested).

Mediations will be conducted on the pilot after consultation between the Commission, the parties and the Mediator. All Mediators can participate.

Training for All Users

Modron has delivered the training sessions for each of the following groups:

• WCC Arbitrators
• WCC Mediators
• Legal Practitioners
• Icare representatives
• WIRO representatives.

Setting Participants Up for Success – Connecting you to Modron

• The arbitrator/mediator and the parties will receive an email from the Commission advising that the matter will be conducted on Modron Spaces.
• All participants will receive an email from Modron not less than 5 business days before the event – it will provide a link that will allow you to test if your device is appropriate and second, it will establish an appointment to participate in a 1.1 familiarisation process.

Concierge Support: Standard and Enhanced

Standard Concierge - Modron will email each participant as discussed above and will conduct a 1.1 familiarisation session with each participant. Modron will also assist participants when they connect to an event and participants can contact Modron for assistance during any matter.

Enhanced Concierge – If a matter is complex, Modron will not only provide all the features of Standard Concierge, it will also sit through the entire event, to assist the parties. Access to enhanced concierge will be determined by the Commission in consultation with the Arbitrator or Mediator.

We want your feedback - please!

After you participate in an event conducted on Modron, you will receive an online Survey. Please respond to the Survey, as we genuinely want your feedback.

If you would like to update your skills on MODRON go no further than clicking on the video below:

This is a Mock Con/Arb which was written and performed by the Commission’s inhouse arbitrators and two sessional arbitrators – this excellent video can be used by arbitrators, mediators and legal profession. The team take you through everything you need to know to conduct or participate in a Commission event that is conducted on Modron Spaces.

SUMMONS TO ATTEND

Set out below is an explanation about:

1. How the Commission handles Summons to Attend for a conciliation/arbitration that is listed on MODRON Spaces; and
2. The duties of the filing party – importantly, the filing party must:
   1. Prepare a witness schedule that shows when each witness will be called to give evidence (Witness Schedule); and
   2. Ensure that persons listed on the Witness Schedule are given all the information they need to participate and give evidence

The Protocol

When the Commission issues Summons to Attend to a filing party, the Commission will write to the filing party in the following terms – please read it closely

Dear Filing Party

Attached are sealed copies of the summons to attend. The con/arb will be heard online, using the MODRON Spaces platform (i.e. video link) and so you MUST to do the following:

3. Prepare a witness schedule that shows when each witness will be called to give evidence (Witness Schedule).
4. Email the Witness Schedule to the Commission within 2 business days of the date of this email.
5. Serve the summons in compliance with Practice Direction 7B https://www.wcc.nsw.gov.au/legal-resources/practice-directions/practice-direction-7b-summons-to-attend and do so with a covering letter that tells the witness:
   1. The conciliation/arbitration that they are being summoned to attend, will be heard on a video platform called MODRON Spaces;
   2. the precise time the witness must be available on the video platform (i.e. as set out in the Witness Schedule);
   3. the witness must send you, their email address and mobile number, ASAP but not less than 5 calendar days before the listed hearing date; and
   4. the witness must read the attached FACT SHEET: WHEN YOU ARE SUMMONED TO GIVE EVIDENCE IN THE COMMISSION ONLINE
6. Send the Commission the email address and mobile number for each person listed on the Witness Schedule  ASAP and not less than 5 calendar days before the scheduled hearing date  – to be clear, you must send the Commission the email address and mobile number for each witnesses ASAP but not less than 5 business days before the scheduled event, noting that it is your responsibility to ensure that persons listed on the Witness Schedule are given all the information they need to participate and give evidence.
7. Please ensure you advise the witness appropriately and assist them with any concerns they have about access to the MODRON video platform.

Here is the fact sheet referred to above

FACT SHEET

YOU HAVE BEENSUMMONED TO GIVE EVIDENCE IN A MATTER AND IT WILL BE HEARD ON AN ONLINE PLATFORM CALLED MODRON SPACES

The Venue for the Hearing is Modron Spaces

1. The conciliation/arbitration (con/arb) to which you have been summoned to give evidence, will be conducted online, using a video platform called Modron Spaces.

   The Information You Must Provide -

2. Please send your email address and mobile number ASAP, to the legal representative who sent you the Summons to Attend. Modron Spaces will then contact you to ensure you can access the Modron Spaces platform at the right time on the con/arb day.

   Modron Spaces Will Contact You To -

3. Test the compatibility of the device you will use for the con/arb.
4. Conduct a 15-minute familiarisation session, so you are ready on the day;
5. Connect you to the Modron Spaces platform on the hearing day; and
6. Give you technical support during the con/arb.

You Will Need -

7. A device like a computer, tablet, or mobile phone – ensure it is charged or you can charge during the con/arb.
8. A camera on the device (attached to, or built into, the device).
9. Reliable internet access – critical.
10. Google Chrome internet browser - If this isn’t installed on your device, please download it. You do not need to download any other software.
11. Access to a headset/speaker or a microphone attached to the computer.

You need to do the following on the Day of the Con/Arb -  

12. Open the Modron Spaces link using Google Chrome, at least 10 minutes before your allocated time. The Modron Spaces case manager will place you in a private space until you are called - he/she will then help you enter the main hearing room.
13. Please participate from a quiet room where you can close the door.
14. Please avoid taking incoming calls or text messages during the con/arb.