April 15, 2021

The COVID-19 pandemic has affected our lives for over a year now, but there appears to be a light at the end of the tunnel as vaccines are rolled out and become more readily available. You may be wondering how this transition period between working remotely and returning to the office affects how you or your business should address a potential lawsuit on the horizon.  

Just like other institutions, many courts were completely closed for weeks, or even months, at the beginning of the pandemic. Thankfully, the courts have now reopened and are being conducted – like many other activities – via video conference. And while judges and their clerks are doing their best to manage their caseloads remotely, there is no doubt that there is a huge backlog. Two large obstacles are currently weighing down the court system. First, jury trials have largely been suspended, since health protocols discourage people gathering together. Second, if and when trials do proceed, the courts will prioritize criminal cases over civil litigation and commercial disputes, since the U.S. Constitution guarantees a speedy trial for criminal defendants. Although some courts have experimented with trials via video conference or using social distancing, it will take some time for the courts to catch up from this logjam even when we fully return to "normal."

So, while you can always proceed with your litigation through the court system, there is another option: alternative dispute resolution. Alternative dispute resolution, or "ADR" for short, is a way to resolve your litigation using an independent third party, which is separate from the court system. ADR comes in two flavors: mediation and arbitration.

Mediation is essentially a structured way to approach settlement negotiations. A third party, usually a retired judge, will work with all sides of the dispute to address the strengths and weaknesses in their cases to shepherd a settlement. A benefit of mediation is that the matter will not be resolved unless all parties agree to the settlement, so the decision is not taken out of your hands and decided by a judge or a jury. Mediations typically last a half day to a full day, can be conducted by video conference, and the parties usually split the costs to hire the mediator. In addition, mediation can be pursued even if the parties are already in litigation before a court. In fact, it is encouraged.

The other ADR option, arbitration, is a condensed, speedier, and often less expensive version of a trial. Many times, contracting parties already will have agreed to arbitrate a dispute based on specific language or terms in their operative contract, commonly referred to as an arbitration clause. However, even if the parties did not agree to arbitrate previously by way of a contract or otherwise, they can always agree to do so later in lieu of litigation. Unlike litigation, where filings, hearings, and trials are open to the public, arbitration proceedings are confidential and are conducted privately. Similar to a trial in the court system, the arbitrator has a final say in the dispute and will decide which party wins and which party loses. Additionally, there are typically no appellate rights (meaning, unlike a court trial where there may be appealable issues, there are no appeal rights with arbitration and there is finality).

The arbitrator can be one person or a panel of people. Arbitrators are often retired judges or knowledgeable professionals in the relevant industry. Also, to reduce time and costs in comparison to a regular trial, the parties to an arbitration often agree to limit the formal investigation, called discovery, so only a limited number of documents will be exchanged or people deposed. This can greatly reduce the attorneys' fees and costs in a case because discovery in a litigated matter can become quite costly. In addition, while the arbitrator will conduct a hearing, similar to a trial in court, the rules for that hearing are comparably more lenient and the rules of evidence are a lot more lax. As a result, arbitration proceedings tend to run more efficiently and are much quicker than court trials. The parties also typically split the costs for this process, which can be conducted remotely from start to finish.

There are always risks and rewards whether you decide to proceed with litigation or opt for ADR. If you have questions about the best option for you and your business, reach out to your Much lawyer or any member of our Litigation & Dispute Resolution team.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.