IN THE PROFESSION is not possible , consider putting a faster resolution method on the negotiation table .
I regularly have discussions with both sides about alternatives to court delays when it is clear a full settlement will not be reached on the day of mediation . It goes something like this to the defense : “ If I can get the plaintiff to waive their right to a jury trial , would you be interested in picking an arbitrator today so the case can be resolved in the next 30 days ?” For the plaintiff , I can say : “ If I can get your case decided in the next 30 days , would you be willing to pick a fair person to decide the case ?”
It is a win-win for both sides in many cases . Especially when the parties get to choose their “ juror ,” who will decide the outcome . Plaintiffs have their favorite arbitrators , and so does the defense . Once the decision to arbitrate is reached , the next hour is spent on negotiating who will be the arbitrator .
Another option for cases early in the pipeline ( i . e ., still in discovery ), is agreeing at mediation to using a Special Master . After all , when will the Court have time to hear a discovery dispute in a simple car wreck case when they are swamped with criminal jury trials ? The same is true for any cases which have a need for urgent hearings .
I believe civil litigants who want to move their cases forward may find a remedy with the Consent Appointment of a Special Master . Uniform Superior Court Rule 46 allows the Special Master to resolve all discovery disputes , and even impose contempt sanctions and remedies . The Rule does not just deal with Discovery . The Rule allows a Special Master to conduct all pretrial proceedings and even conduct a bench trial when consented to by the parties . For lawyers who want to keep the case moving forward , the option of a Special Master will be especially important to allow cases to move along their normal schedule .
When I served on the bench , I limited appointing Special Masters to cases that needed close supervision for discovery , but not as a matter of routine . If you are a civil lawyer and want to keep the case moving through discovery , I suggest the Special Master option . If you are satisfied during discovery that the Special Master will be fair to your side , it may be that both sides can later agree to the Special Master resolving the case by consent of the parties .
I recommend this option not only in injury cases , but in all civil cases where time is of the essence . A two-year delay in a case is almost impossible to contemplate for a litigator .
Being open to alternatives to the current COVID-19 court delays is the key . It is not practical in every case for the plaintiff or the defense , but when possible , having an outside the system option can help the parties ultimately resolve the dispute .
Another benefit of having a Special Master option is the availability of the neutral to schedule , conduct hearings , and issue rulings is normally more flexible than a sitting judge . This is especially true for Zoom hearings , which some judges have stopped since COVID-19 cases are now reduced .
Hon . Randy Rich is a mediator with Henning Mediation . As a judge he presided over 300 jury trials , as well as the largest pending civil lawsuit in Georgia : the Georgia Opioid Litigation . Judge Rich founded the Gwinnett Business Court and was later named a Business Court Judge in the Metro Atlanta Business Court .
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