Going online, in a hurry
By Margaret Doyle (University of Essex)
In the 2011 film Contagion, Dr Ally Hextall of the Centers for Disease Control (CDC) inoculates herself with a potential vaccine she has created to combat a deadly virus. In the midst of global panic, she decides to bypass the time needed to obtain patient consent and run clinical trials and, after injecting herself, she visits her sick father to test the effectiveness of her vaccine. It works, the vaccine is rolled out, and millions of deaths are averted.
Administrative justice practitioners find ourselves in a similar, albeit less deadly, situation in Covid-19 lockdown. After many years of cautiously testing the waters of digitalisation of tribunals and mediation proceedings, we have found ourselves shifting rapidly – in the space of two weeks – to a complete conversion to online delivery. In special educational needs and disabilities (SEND), the Tribunal has been gearing up to this for some time and was quickly able to transfer appeal hearings to its videoconference platform and get its judges up to speed with the technology. As Deputy Chamber President Meleri Tudur reports, the Tribunal is now able to conduct all hearings remotely, either by video or telephone.
SEND mediators have lagged behind but we’re getting there. With little administrative infrastructure or IT support behind us, we have transferred scheduled mediations to Zoom or Skype and are gearing up for offering videoconference mediations for the foreseeable future. Across England, SEND-accredited mediators hold more than 3,000 mediations each year, and converting these to virtual ones is no easy task. Some participants are unfamiliar or uncomfortable with videoconferencing technology. Digital exclusion, affecting 18% of the population, is a harsh reality for some of our participants. Others, including local authority officers, face security firewalls and can’t access some videoconferencing platforms from their work laptops. We sometimes need interpreters (for BSL or languages other than English); we often need involvement of school professionals who may not be available. As with the Tribunal, most participants seem to be managing the challenges – local authority officers and parents, children and young people, teachers, occupational therapists, all working from home and on laptops or iPads – and so far, anecdotally at least, our outcomes seem broadly to reflect those resulting from in-person mediations.
But the context is one of even more uncertainty than in ‘normal’ times. Parents are concerned that emergency legislation (Coronavirus Act 2020) has watered down the statutory duties on local authorities to make provision in Education, Health and Care (EHC) Plans. Questions put to the Special Needs Jungle blog in the past few weeks highlight the levels of anxieties parents have about their children’s educational support during this period. EHC Plans remain in force, and local authorities still have a duty to make the provision specified in them, but the Act gives the Secretary of State the power to modify that from an absolute duty to a duty to make reasonable endeavours to make the provision. That hasn’t happened, yet, but the reality is that for most families, flexibility and creativity are required to find ways to put the necessary support in place in light of social distancing and school closures.
Mediation responds well to the call for flexibility and creativity in coronavirus times without letting go of the statutory protections provided by the Children and Families Act 2014. We have the same issues as we usually have – appeals to local authority decisions not to carry out EHC needs assessments and not to issue EHC Plans, contents of EHC Plans, school or college placements. We write up outcomes in the same way, specifying what has been agreed and ensuring everyone is clear on next steps. We reassure parents and young people that if the mediation doesn’t achieve the outcome they want, they have the right of appeal to the Tribunal. In my experience, all parties are willing to do what they can to ensure that children and young people get the right support. But some therapists, teachers and other professionals are currently unavailable, some assessments have to wait for the return to school, multi-agency panel meetings might not happen as frequently as they usually do – everyone’s expectations of what can be achieved by when have to be moderated in light of current constraints.
I have run several virtual SEND mediations now and, aside from the expected technological glitches (everyone seems to experience ‘unstable internet connections’ these days), the sessions can run almost as if they are in-person sessions. We use breakout rooms when separate meetings are necessary (unlike commercial mediation, in SEND we predominantly keep people together in the mediation room rather than caucus or shuttle between them), we can share the screen to examine documents together, we can have tea breaks. I find that videoconferences allow much more opportunity for the direct and honest exchanges mediation requires than are possible with teleconferencing. My particular interest is in how young people at the centre of the dispute can participate in mediation, and I hope that videoconferencing allows more opportunity for that because the mediation can happen in a familiar environment (and in pyjamas). And it’s a delight to see participants’ backgrounds – the kitchens and sofas and artwork that somehow humanise everyone involved. It’s a bit rough and ready, to be sure, and most mediators I know are busy channelling the mantra ‘don’t let the perfect be the enemy of the good’. This is no time for perfect.
As in the scenario in Contagion, pandemics offer little scope for the time-consuming business of testing and trialling. Most empirical research on the workings of administrative justice takes years of scoping, securing funding, surveying, evaluating, interviewing, analysing, writing up. There are then protocols and practice directions to draft and consult on before changes are made to procedures and guidance. We have had to plunge headfirst into this, with guidance being made on the hoof, subject to constant revision and update. We scramble for YouTube training videos and weekend practice sessions. We figure it out, make mistakes.
Hopefully we’ll all get better at it. We may find that when lockdown ends, we default to holding remote hearings and mediations, or at least what we offer is more of an online/offline hybrid. It’s a welcome opportunity to question the way we’ve always done things, to improve on the standard model. But what will be lost in our rush to move online, if indeed this becomes the new normal? There are obvious gains, in saving time and avoiding unnecessary travel, in saving costs, perhaps even in facilitating more engagement from young people who might find online interactions more tolerable than sitting around a table in an impersonal meeting room. But in-person mediation will still be preferred by some parties, especially parents, and it’s inevitable that cost pressures will influence decisions on how mediation is delivered – will there be a real choice, or will virtual be the default mode? And do we abandon the need to consider the pros and cons, the wider implications, to study the impact through empirical research?
Almost exactly two years ago UKAJI announced the publication of a new report, by Robert Thomas and Joe Tomlinson, on the digitalisation of tribunals. That report, The Digitalisation of Tribunals: What We Know and What We Need to Know, set out first steps for a multi-disciplinary research agenda on online tribunals.
Although video links have been used for some time by the Upper Tribunal (Immigration and Asylum Chamber) for certain types of hearings, Thomas and Tomlinson noted that the judiciary generally held the view that departures from the in-person hearing model would reduce the quality of the evidence given and judges’ ability to assess evidence. Jo Hynes has vividly described problems with videolink immigration bail hearings and the ‘delicate task’ of securing access to justice in these contexts. Sarah Craig has written of the impact of digitalisation on interpreters when hearings involve non-English speakers.
Among the areas requiring research identified in the report are implications for access to justice, particularly in terms of digital exclusion – the 18% of the population without access to the internet, and the many more requiring some digital assistance – and the inequalities that arise as a result. Other areas include procedural justice and the ability of individuals to participate meaningfully in online procedures, the impact on transparency of judicial proceedings, how online procedures affect behaviours and the role of key participants including judges and representatives, and how such procedures may affect outcomes. Other questions that arise relate to security and privacy and whether, ultimately, successful rollout of digitalisation will make other systems (in-person hearings, for example) appear redundant.
The conclusion Thomas and Tomlinson reach is that ‘it is clear that it is important that research is undertaken on online tribunals. … Ensuring that research keeps pace with quickly-unfolding developments and their implications presents an immense challenge, but this is a major issue—with potentially huge social and economic effects—worthy of detailed inquiry‘. In administrative justice in particular, they note, it is ‘important that a research agenda for online tribunals is distinct from research concerning online courts generally—in administrative justice, the fundamental question of the relationship between the state and the citizen is in play’.
At the moment, empirical research and application of design thinking look like unattainable luxuries while statutory deadlines loom and essential decisions need to be made. My question is, how do we hold onto that imperative set out starkly by Thomas and Tomlinson and, in our rush to keep the administrative justice show on the road, not let ourselves be lulled into thinking we’ve cracked it? This is what ‘sleepwalking into…’ references are about – the risk that we stumble headfirst into new territory because needs must, but when things settle, we fail to remember those warnings about stepping back and doing the time-consuming work of empirically researching new developments.
NB: The artwork contained in this piece was produced by the author, Margaret Doyle. UKAJI thanks her for this creative contribution.