Mediation vs Litigation during Covid-19

Mediation, instead of Litigation, BECAUSE of the pandemic?

The pandemic restrictions have triggered more alternative dispute resolutions in the place of litigation.

Federal, state, and local laws and legal systems are adapting as quickly as possible to new realities in the wake of the pandemic, but not fast enough. The courts, cornerstones of our government’s judicial branch, have been hindered, as many courthouses have closed and judges have been forced to postpone in-person trials and hearings.  Social distancing, stay-at-home orders, and other safety measures have rendered group gatherings impractical.

The pandemic has really “messed up” how courts operate. Many courts are closed to the public. Many courts are still working out the “kinks” with telephonic and video conferences. Many courts are only hearing ESSENTIAL matters for which you need to request permission to be considered essential.

Judicial and arbitral proceedings require, to some extent, face-to-face confrontations. However, mediation proceedings typically don’t. Interestingly, in-person mediation sessions can actually detract from the efficiency and success of those mediation efforts.

Though we have limited ability now to meet in person, and many of our courthouses are temporarily shuttered, disputes linger and fester. Resolutions remain to be discovered. Problems persist, but mediators are finding VIRTUAL ways to provide relief. Methods of alternative dispute resolution (mediation and arbitration) are tools that, even during a pandemic, can provide litigants and backlogged courts some much-needed relief.

Mediation is a process in which a third-party neutral—the mediator—helps parties arrive at mutually agreeable solutions to conflict outside of court. Mediation typically offers a range of potential advantages compared to trying a lawsuit before a judge or jury, such as cost and time savings, the parties’ ability to control the outcome of their case, confidentiality, certainty, reduced stress, and overall flexibility.

Although mediators have traditionally assisted parties to resolve disputes through face-to-face processes, conducted in conference rooms or courthouses, mediation practice has quickly adapted in response to the COVID-19 crisis. Across the country, mediators are increasingly using different forms of technology and online dispute resolution (ODR), which allow parties to negotiate remotely, to continue to resolve lawsuits and disputes even in an age of canceled hearings, postponed trials, and social distancing.

Mediators can use virtual tools to help parties reach agreements to settle their lawsuits through a range of online dispute resolution options. For example, mediators increasingly offer dispute resolution services using videoconferencing platforms.

Through videoconferencing like Zoom, WebEx, Google Meet, GoToMeeting, and others, mediators can “meet” with the parties in a lawsuit, help them communicate and negotiate with each other, and work toward agreements acceptable to all parties to resolve their lawsuits.

Mediators can replicate, through video, the structure of a mediation process, enabling parties to see and hear each other, share audio and video, as well as other digital files, and even execute settlement documents remotely through online tools.

Mediators can meet with parties together in joint session or separately in private meetings—using virtual “room” groupings—and conduct back-and-forth discussions, using these platforms, that ultimately help the parties move toward resolution.

If you need help mediating a matter, contact the law firm.