With most cases facing indefinite suspensions in the courts, it behooves litigants and their counsel to at least consider alternative methods of resolving disputes. Alternative Dispute Resolution (“ADR”), most notably mediation and arbitration (and their variations), can offer a more expeditious and flexible means of resolving controversies even in normal times. In the current extraordinary environment, the advantages of ADR become even more pronounced.
Is ADR a Practical Alternative in Light of the Pandemic?
Mediation is valued not only as a substitute for litigation, but as an adjunct to it, and has been vigorously promoted by the courts for years. In an appropriate case, it presents the opportunity for a quick and inexpensive way to resolve a case and enables parties to design a settlement, including forms of relief not usually available in the courts.
Despite these and other advantages, mediation is not always embraced. At times the level of hostility between parties poses an apparent barrier to mediation. In other circumstances, while parties may be generally amenable to mediation, they may feel that it is premature, such as where they believe that some amount of discovery needs to be completed before proceeding down that path. I suggest that, given the current health crisis and its impact on court proceedings, the evaluation of the pros and cons of mediation warrants reconsideration. Indeed, the harsh reality is that, for some businesses, as well as individuals, some financial recovery now is more attractive than the uncertainty of what, if any, recovery will be obtained at an indefinite future date.
Arbitration, as well, may offer a more practical and expeditious manner of resolving a pending dispute. Again, the reasons why parties might be reluctant to pursue arbitration in place of litigation in normal times should be reassessed in the current environment. Furthermore, any perceived shortcomings in the arbitration process can be addressed in the parties’ arbitration agreement.
In most cases, arbitration procedures are dictated by the parties’pre-dispute arbitration agreement. At the point such agreement is signed, the parties are, at least in theory, on the same page. Reaching an arbitration agreement when the dispute has already arisen is clearly more difficult. Adversaries may reflexively adopt a mind-set that “if the other side wants it, then I’m against it.” Currently, however, adverse parties may have a common interest in not having their cases drag on indefinitely and may be more receptive to agreeing to alternative procedures.
Can ADR Be Successful Without Face-to-Face Meetings?
Once the parties determine to proceed with mediation or arbitration, they can work with counsel and the neutral to design a process that is effective. With respect to mediation, the inability to conduct in-person sessions should not pose an insurmountable obstacle. In a perfect world, face to face mediations are most effective. However, even now, parties can strive to duplicate the effectiveness of traditional mediations through use of a variety of means including conference calls and videoconferencing using Zoom, Skype, FaceTime and other platforms.
There are a number of challenges when planning and conducting virtual mediations that should be addressed at the outset. For example, it must be assured that all participants are comfortable with the technology and have the necessary equipment to make the process as seamless as possible. To facilitate this, it is advisable to conduct a trial run in advance.
There are also privacy and confidentiality issues that are unique to remote mediations. It is essential that only authorized individuals participate and listen to the mediation sessions, and that there is no unauthorized taping of the discussions. These and other ground rules should be the subject of a protocol agreed to before the mediation starts.
As with mediations, the inability to conduct in-person arbitration hearings can be overcome through means of technology as discussed above. Telephonic hearings are often used in American Arbitration Association (“AAA”) Expedited Procedures. In addition, AAA Commercial Rules, for example, already provide that “when deemed appropriate, the arbitrator may also allow for the presentation of evidence by alternative means including videoconferencing, internet communication, telephone conferences and means other than in-person presentation” (AAA Commercial Arbitration Rule R-32(c)). It is actually quite common for people who cannot testify in-person to provide telephonic testimony. To be sure, conducting hearings in which all participants are in remote locations is far more challenging, but I believe is doable. In the end, the parties can by mutual agreement determine the means by which their case is to be conducted and, in my experience, arbitrators will almost always follow any reasonable agreed upon procedures.
If you have any questions in this area, feel free to contact me at firstname.lastname@example.org.