By Danny Khoshaba, Partner and Sherilyn Dunkley, Associate
We are all facing challenges as a result of COVID-19 and that is no less the case for our legal system.
Access to justice is a basic principle of the rule of law and is considered a basic human right. As stated by the Hon Kevin Lindgren AM QC:
“The rule of law and a strong independent judiciary are empty ideals if people cannot access the courts.” [i]
In the absence of access to justice, people are unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers accountable.
In a time where we see our lives in terms of what is ‘essential’ and ‘non-essential’, there can be no question that access to justice is essential.
Like the rest of society, the courts have had to take steps to balance the safety of their employees, the parties and the public.
Throughout the world, courts at different levels have put in place different protocols to deal with COVID-19 while ensuring access to justice.
The measures that have been adopted range from limiting traditional court attendances for urgent or specific matters only, moving to telephone and/or video conferencing and completely closing their doors.
The use of technology in legal proceedings is by no means a new phenomenon. Video conferencing has been available in various courts for well over a decade, however never before has it been so widely implemented, or so dearly relied upon.
Video conferencing has long been embraced in courts because as long as the technical systems are in place, and the relevant people know how to use them (and it works on the day), it enables the parties to have the same verbal and non-verbal interactions that would normally take place in a traditional legal setting.
Why is it important to have face to face communication?
At the heart of resolving legal disputes, whether it be in a courtroom, tribunal or commission, is constant communication between the relevant parties and the decision maker.
Any time you are talking with someone, you and the other person are receiving a lot of non-verbal information or “contextual cues”. These cues give the words that are spoken appropriate meaning.
We are so used to communicating face to face that it is easy to underestimate just how fundamental non-verbal communication is to our interactions.
There is significant scientific evidence that facial displays, eye gaze and physical behaviours play important complex roles in how we communicate with each other. For example:
- Facial displays perform a wide range of communicative functions, including:
- Eye gaze has regulating, monitoring, expressing and deception identification functions, such as:[v]
- Regulating the flow of conversations by indicating the opening or the closing of a communication channel and by serving as a turn-taking signal; [vi]
- Serving as a monitoring function, scanning for nonverbal behaviours of conversational partners in order to get feedback and to plan responsive statements; [vii]
- Inferring someone’s emotion such as anger and tension[viii]
- Pupil dilation can be an indicator of deception.[ix]
- Physical Behaviours
- Physical gestures such as fidgeting, shaking the head, nodding, shrugging your shoulders, and hand gestures can provide context to what is being said.
- Behaviours such as fidgeting, lip pressing, being rigid, tense and stiff, relative to when someone is speaking the truth, can also be a sign of deception.[x]
During our everyday interactions most of us are unaware of the complex non-verbal information we are receiving. Accordingly, there is no doubt that we would find it incredibly difficult to change the way we communicative to compensate for the lack of non-verbal information.
In a legal setting where the outcome can have such significant impact on the parties involved, it is easy to see why it is important to have video conferencing available where face to face interactions are no longer possible.
How is COVID-19 affecting disputes involving injured workers in NSW?
In NSW injured workers access justice through the Workers Compensation Commission.
In response to COVID-19, from 23 March 2020 the Workers Compensation Commission has ceased all face to face Conciliation/Arbitrations and Mediations, with matters proceeding by way of by teleconference, unless approved by the President of the Workers Compensation Commission. In some circumstances, for example where a witness needs to give evidence, the proceedings may be conducted by audio-visual link.
The Workers Compensation Commission has long embraced the use of teleconferences and has been doing so successfully for over 20 years now. Teleconferences before an Arbitrator are the first stage in the Workers Compensation Commission dispute resolution process, prior to proceeding to Conciliation and Arbitration.
However, it is the first time that Conciliation and Arbitrations, and Mediations have been conducted by teleconference instead of face to face.
The two processes are obviously very different and proceeding by teleconference poses different challenges for each, largely because one involves an Arbitrator with decision making powers and the other involves a Mediator who is tasked with facilitating settlement negotiations between the parties.
Conciliations and Arbitrations
A Conciliation conference is a meeting conducted by an Arbitrator who will attempt to bring the parties to agreement in order to avoid proceeding to an Arbitration.
An Arbitration hearing is a formal proceeding where the parties will make submissions, evidence may be given by witnesses and an Arbitrator will make a decision in relation to the dispute.
Given that all parties in the Conciliation and Arbitration, including the Arbitrator, are used to the teleconference format already as part of the dispute process, in theory the new procedure shouldn’t pose too many issues, particularly with respect to Conciliations.
However, as outlined above, effective communication involves more than what is said, rather it is a complex interplay of verbal and non-verbal factors.
In particular, it will be more difficult to build rapport between the parties without a face to face meeting, which is essential when trying to resolve disputes where the parties may have very different viewpoints.
Eliminating non-verbal communication such as facial displays, eye gaze and physical behaviours in workers compensation disputes is going to pose a significant challenge for the parties and the Arbitrator alike. The risk is that without the important dimension of non-verbal cues, what is said may not conveyed as effectively and may be misunderstood.
Ultimately, while we are forced to conciliate and arbitrate by way of teleconference, practitioners will need to pay particular attention to effectively conveying views and opinions verbally.
Mediations take place in the Workers Compensation Commission where the parties agree to attempt Mediation in work injury damages (negligence) claims prior to proceeding to court.
Mediations are an informal process and the Mediators role is to: manage the communication process so that everyone has an opportunity to express their views; keeping the discussion focused on the issues; and getting the parties to focus on the consequences of not reaching an agreement, particularly the risks of litigation.
Unlike in the Conciliation and Arbitration process, Mediations held by the Workers Compensation Commission have always been held face to face and have never before proceeded using the teleconferencing format.
This means that Mediators are not familiar with the process of directing the flow of teleconferences and don’t necessarily have experience communicating with the parties to assist negotiation via phone.
Traditionally a Mediator uses a variety of techniques to build trust between themselves and the parties, and between the parties themselves. These techniques include observing body language which provide clues to the degree of rapport and mistrust between the parties or their willingness to reach agreement on the issues.
This then raises the question of whether trust between a Mediator and the participants can be developed as quickly, or at all, in a teleconference format.
On the other hand, there is the potential that Mediations by telephone provide an environment that insulates each party from the emotional impact of the other. In workers compensation matters, being injured and unable to work naturally has a significant impact on injured workers and their families. Accordingly, there is the risk that this can impede successful negotiations at Mediation.
However, whether this potential advantage can overcome the problem of a lack of experience in running Mediations by telephone and the difficulty of building rapport, is yet to be seen.
The way forward
It is evident that workers compensation legal practitioners in NSW face significant challenges in navigating the new teleconference process for Conciliations, Arbitrations and Mediations.
While the teleconferencing format continues, legal practitioners will need to understand the limitations of the new process and ensure that they:
- Prepare Prepare Prepare – speak to clients and the other parties beforehand to set clear expectations of the process and clarifying the issues.
- During the teleconference:
- Verbally clarifying, checking, testing assumptions and summarising more regularly than in face-to-face negotiations.
- Listening carefully to the other parties.
Ultimately though, the evidence on the role of non-verbal cues in the way we communicate with each other highlights the benefits of video conferencing as a platform for ensuring access to justice in a COVID-19 world.
[i] ‘The Rule of Law and Some Current Aspects of the Legal Scene in Australia’, Sydney University Distinguished Speakers Program 2013.
[ii] P. Ekman, “What scientists who study emotion agree about” (2016) 11:1 Perspective on Psychological Science 31; H. C. Hwang and D. Matsumoto, “ Facial expressions” in D. Matsumoto, H. C. Hwang and M. G. Frank, eds., APA Handbook of nonverbal communication (Washington: American Psychological Association, 2016) at 257-287.
[iii] G. A. Bonanno, D. Keltner, J. G. Noll, F. W. Putnam, P. K. Trickett, J. LeJeune and C. Anderson, “When the face reveals what words do not: Facial expressions of emotion, smiling, and the willingness to disclose childhood sexual abuse” (2002) 83:1 Journal of Personality and Social Psychology 94; N. Chovil, “Discourse-oriented facial displays in conversation” (1991) 25 Research on Language and Social Interaction 163.
[iv] For example, D. S. Krull, C. R. Seger and D. H. Silvera, “Smile when you say that: Effects of willingness on dispositional inferences” (2008) 44:3 Journal of Experimental Social Psychology 735.
[v] A. Kendon, “Some functions of gaze direction in social interaction” (1967) 26 Acta Psychologica 100.
[vi] Denault, V. & Dunbar, N. (2017). Nonverbal communication in courtrooms: Scientific assessments or modern trials by ordeal? The Advocates’ Quarterly, 47(3), 280-308.
[viii] 79 R. B. Adams and R. E. Kleck, “Effects of direct and averted gaze on the perception of facially
communicated emotion” (2005) 5 Emotion 3.
[ix] Denault, V. & Dunbar, N. (2017). Nonverbal communication in courtrooms: Scientific assessments or modern trials by ordeal? The Advocates’ Quarterly, 47(3), 280-308.
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