Must “Justice” Be Delayed?

From the Desk of Bart J. Eagle ―

Mediation takes on new relevance in the pandemic ― going “remote” opens a huge new opportunity for early case resolution.

Lawyers, clients and court administrators have become increasingly aware of the value of mediation to provide a quicker, more cost-effective way to resolve a dispute than the entirety of a beginning-to-end lawsuit in the courts.  Around the time that the current pandemic struck, the New York State court system had been rolling out its “Presumptive ADR Initiative,” which in many cases means mediation.  The federal courts also have mediation programs.  With the pandemic creating a backlog and logjam in the courts, likely for years to come, mediation has suddenly become a far more critical tool for lawyers and parties to move a case to a resolution.  The time unresolved cases may wait for trial is now far more uncertain and likely far longer than it has been for years.

Before the current pandemic, most mediations of course took place in person, either in the courthouse or in an attorney’s office, where parties and their counsel would appear and meet with the mediator, at times in joint session, and at times in separate “caucuses,” where the mediator would practice shuttle diplomacy.  But how does the new “remote” environment allow for mediation with face-to-face meetings all but unavailable at least for now?

Since the onslaught of the pandemic in March, when businesses and the courts mostly shut down, mediators, to whom Zoom was something they may have heard about but never used, or was a caption in a Roadrunner cartoon, quickly learned how to use Zoom.  The good news is that mediation works extremely well in the “new normal;” and Zoom is particularly conducive for mediation, especially with its breakout room features for caucuses.   Indeed, as someone who has represented clients for many years in mediations and often serves as a mediator, in private mediations and as a court-appointed mediator, I can attest to the fact that the remote Zoom mediations can be, for the most part, extremely successful.  Lawyers are now used to them and their clients are now used to using Zoom.

While most mediators would tell you that there is value in the interpersonal exchanges that take place in a live mediation and I do not anticipate that live mediations will become a thing of the past, remote mediations are a viable (and, today, necessary) alternative and will continue in the future.  In fact, they will be particularly useful and themselves a “new normal” when parties find it difficult or too costly to travel, are located in different places or in some way are not well or just unwilling to appear in person with an adverse party.

What does that mean for our clients, and people and businesses who have disputes with others?  You can certainly start an action, and the case will move forward in court.  However, you should also give serious thought to mediation.  If you are not yet in court, you can agree with your adversary to mediate and select a mediator, either from a provider or by identifying well-regarded mediators from the many sources available to attorneys and the public.  And if you are already a party in a lawsuit, you do not have to wait for a judge to ask or direct you to mediation; your attorney can speak with your adversary and suggest that she consider mediation as a way to try and resolve the dispute.  For you, what better way to spend what still may be “down time” than settling a dispute now, over Zoom, from the comfort of your own home or office, so that when the pandemic is behind you, you can hit the ground running, with the dispute in your rearview mirror, and try and do what you do best – developing your career and business.

Now is not the time to sit and wait and allow existing problems to fester or to let small problems become big problems.  Put this time to use.  Attorneys and clients should be speaking, now more than ever, about how best to resolve any dispute, considering remote mediation as a new tool in the litigation arsenal.

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