These are unique times indeed, with each passing hour and day looking less and less familiar. Each of us is feeling our way through a host of unimagined consequences and reverberations of the COVID-19 pandemic. And for those currently involved in civil litigation, “social distancing” and “work from home” arrangements are made even more complicated by the widespread adjournment of trial dates and motion deadlines, the tolling of statutes of limitation, and even the suspension of court filings of any kind. Please see our recent LEGALcurrents® here for a summary on the status of New York State and federal courts. Indeed, with only limited exceptions, courts have been all but fully closed, operating with skeleton crews and dealing only with the most urgent of matters. With the entirety of New York State “on pause,” litigants understandably are starting to think about what COVID-19 means for their disputes, whether the current climate and exigencies warrant revisiting settlement positions, and how best to forge ahead when virtually every traditional path has been foreclosed. The answer to this last question, as it turns out, is virtually.
At least for the foreseeable future, if parties want resolution, they will need to engage their attorneys and adversaries by phone and internet instead of face-to-face. And because the courthouse and conference room doors are closed, facilitation of that resolution will almost certainly be in the hands of mediators and arbitrators, doing their work at a safe social distance. Fortunately, we live in a day and age when virtual dispute resolution is not only feasible, but comparatively cost-effective and efficient.
Mediation traditionally has involved in-person discussions with all parties under one roof, each represented by individuals with settlement authority. But there is a secret about the process that almost nobody but a past participant knows: after a brief joint introductory session where the parties exchange pleasantries and the mediator covers such things as how lunch will be provided and where the restrooms are, most parties never come face-to-face with their adversaries unless, and until, a settlement is reached. Invariably, each side is escorted into its own private room and, from then on, the mediator shuttles between rooms, attempting to narrow points of contention, identify positional strengths and weaknesses, and shine a light toward a resolution. As it happens, with just a little planning and technological savoir faire, this entire process can take place by telephone or video conference, with no travel expense or lunch tab.
If visuals are important to your mediation, Zoom or Skype offer attractive alternatives to conference room presentations. On the other hand, if all documents have been exchanged and eye-contact is at less of a premium, an old-fashioned telephone conference might well suffice. At bottom, all that is required is that the mediator has a way to call the parties together and to speak with them separately, and for the parties to be able to speak confidentially among themselves.
While typically more formal and drawn-out than mediation, arbitration is no less susceptible of effective virtual participation. Parties may conference with one another and the arbitrator without ever having to be in the same place. With the use of email or virtual data rooms, counsel may exchange and review documents without ever having to lay hands on them. And if parties avail themselves of pre- and post-hearing briefs, a stipulated record, and sworn statements in lieu of direct testimony, skilled arbitrators and counsel should be able to move through a virtual hearing consisting only of cross-examination and questions from the arbitrator or panel in a matter of days, if not hours.
We, like you, are confident that America will be back at work, out and about, and back in courthouses sooner than later. And when that happens, the court system will be ready and waiting. But for now, and because nobody yet knows just how long “for now” will last, parties willing to work virtually toward an amicable resolution need not wait. With a little creativity and planning, they can potentially settle in days or weeks what otherwise could have been a years-long dispute. And of paramount importance these days, they can do so from the comfort—and safety—of their homes.