As litigators of all types, in all areas of the law, in big or small firms, we all collectively suffer with the closure of our public courthouses during this virus crisis. Cases are stayed, parties are frustrated and there seems to be a lack of control to create solutions to the growing needs of our clients. Further, it seems clear that even when this crisis has passed, whenever that may be, the backlog of cases will be overwhelming. Clerks and judges will struggle to accommodate their dockets to manage not only the cases that have been pending, but the new litigation that will erupt as a result of this emergency. As litigators representing our clients, we consistently seek a fair and efficient resolution of our matters. Now we are experiencing an obstacle in our way to accomplishing this goal for our clients.
Now, especially as public dispute resolution is impacted, the shift to private alternative dispute resolution (ADR) seems to be a clear alternative to helping parties in litigation reach closure of their pending matters.
Mediation. Think about the independent stressors that now exist for the parties on both sides of any pending dispute. Each may be struggling with multiple concerns such as business survival, the financial welfare of their family, or bank lending that may be hindered by having pending litigation, and a host of other factors that may not have been present when the case was initially filed. We all know the pressure that exists between parties regardless of whether the matter is a personal injury dispute or a business contract dispute. Whereas the parties may have staunchly objected in the past to “sitting in the room” with the other party to work out their differences, times have now changed. Private mediation, outside of the court system, must be a consideration for all parties in litigation. Again, although it is a non-binding process, it has a higher than 80% success rate. This is a time, whatever service or mediator you choose, to take advantage of the reality that the mediation process is a vital option for your clients.
Arbitration. So, your client wants its day in court with a decision-maker. But how long are they willing to wait to get that to happen? Arbitration is simply a private alternative to court. Arbitration laws have been created to provide for a final binding award without extensive docket delays. The parties can opt for discovery and motion practice if they so choose. If the matter is unique as to an area of law, an arbitrator can be selected from that particular field. If the parties believe that one arbitrator is insufficient for a fair hearing and resolution, a panel can be selected. There is a wide variety of options within the arbitration process that should allow parties to mutually agree on this alternative, even if the parties’ contract does not call for arbitration. Keep in mind that even if a case is in mid-progress, the parties can still mutually agree to stay their case pending arbitration. And, an arbitrator can be directed to acknowledge and proceed in the pending case bound by any initial rulings from the Court as a starting point for their proceedings.
Virtual ADR. Lastly, mediation and arbitration services are making themselves available during our shelter-in-place compliance with easily available technology to allow these proceedings to continue. Many of us have been using video conferencing for the first time ever and recognize that it does provide a personal (albeit “virtual”) connection to others. The same applies to the use of this technology in mediations and arbitrations. But the use of live video technology is just one option that can be used. Keep in mind that mediations have regularly included telephonic connections and have been successful in doing so. Similarly, arbitrations have for years offered “document submission” resolutions or hearings through telephone. Not every case prior to this crisis was mediated or arbitrated only in live hearings.
As we have all learned recently, we need to adapt to succeed. Working from home is just the start. Cases still need to be tried; clients need to be helped. ADR is a true solution.
For thirty years, Scott Zucker has acted as outside legal counsel to a variety of privately held and publicly traded businesses involved in multiple industries. His legal services have ranged from employment, real estate, construction and corporate consulting to representation of companies in the litigation of their financial and business disputes. Scott’s goal is to utilize his legal and business experience to foster the use of Alternative Dispute Resolution to help parties reach resolutions without the time, effort and cost of court litigation. Scott can be reached at www.epicresolution.com.