ranging in age from preschool to college. Yet did we all not go to
law school because we were committed to assuring justice for all and
engineering solutions for individuals and entities alike? Of course we
did, and together we will overcome even this.
One of the collective benefits of this sequestered period is that we all
will emerge more efficient and comfortable with using technology
to leverage case management and dispute resolution. Instead of
last minute canceling or continuing proceedings due to in person
appearance conflicts, judges and attorneys can better coordinate
schedules through use of video hearings and status conferences.
Hopefully, the new normal will dispense with delays caused by
courts holding for attorneys to report as they travel from one county
to the next, or judges managing dockets spanning multi-county
judicial circuits. There should be less courtrooms packed with
counsel and their clients waiting to provide reports in person and
status conferences. An out of town witness no longer will require
a mediation or arbitration to be continued. We may also find the
scheduling of mediations and other events become somewhat easier
when they require participation – but not necessarily in person – of
several people from out of town, each of whom needs to schedule the
event around her or his other professional commitments, grandpa’s
birthday, kids’ school plays and so forth.
The judicial closures also have halted court annexed mediations.
Several courts located in Metropolitan Atlanta and elsewhere across
the state rely on court appointed mediators to resolve cases. When
courtrooms suspended calendars, case referrals for mediations also
ceased. In speaking with Executive Director Edith Primm (Justice
Center of Atlanta), two-thirds of the mediations on the books for
the second half of March were canceled by parties or their counsel
upon the issuance of the Chief Justice’s Order. When Governor Brian
Kemp announced his entry of the April 2nd Shelter in Place Executive
Order, the Justice Center reacted further by closing its doors. Most of
its mediations are referred from judges presiding over small claims,
probate and juvenile court matters. Without those referrals, the
steady demand for mediation has largely ceased. While the Justice
Center stands ready to provide alternative means for mediation
services, the reality is that the majority of the parties served by the
Justice Center do not have access to devices that comply with the
technical requirements for video mediation such as a computer with
a camera and microphone .i When the courts reopen, Edith Primm
and her array of Justice Center mediators will be ready to resume
with providing court annexed mediation services and to conduct
mediation training, admittedly in smaller numbers per class to
accommodate the social distancing we all expect will continue to be
practiced for the indefinite future.
Turning to the private sector, over the past thirty days, major changes
have been made in order to provide the flexibility in services their
clients demand. Although court mediations have stopped for the
time being, private mediation and arbitration continues to serve the
unceasing demand of clients to have their cases resolved. Cognizant
28
April 2020
that attorneys and their
clients want to keep
their
matters
moving
toward effective resolution,
Video conferencing is
a centerpiece of dispute
resolution is the conduct
providing an effective
of
mediations
and
means to keep matters
other
hearings
by
video, including the use
moving towards
of
Zoom,
Endispute/
CourtCall
and
other
resolution when in
similar
platforms.
person hearings are
Many
disputes
are
time
sensitive
essentially unavailable.
and should not wait until
the
courts
reopen.
(And in-home use of video
has the collateral benefit
of enabling participants
to take occasional breaks to deal with other professional matters or
the kids’ geometry or poetry assignments).
Likewise, there is a need for interim evidentiary decisions to move
cases along. Special Masters can conduct Daubert hearings, resolve
discovery disputes, address petitions for appointment of receivers
and hear and decide dispositive motions. In family law matters, a
virtual mediation or arbitration might be helpful for parties in need
of a temporary or final financial or custody decision.
William Shakespeare once said, “The eyes are the window to your
soul.” And while there may not be anything better than a face to
face interaction, in this time of partial masks and social distancing,
flexibility and a willingness to try new things is the order of today.
Most mediators and arbitrators have had positive experiences with
video-based meetings and hearings long before any of us had heard of
COVID-19. There have always been special circumstances requiring
a virtual view of a witness or the decision maker. Those neutrals
that have conducted effective sessions using video typically can
identify several factors contributing to their success in conducting
mediations and arbitrations. Counsel and their clients appreciate the
opportunity to have a brief “test run” of the technology a few days
ahead, which allows everyone to go forward with confidence that
their equipment is reliable and compatible. If the neutral selected
does not offer that opportunity, you should ask him or her for a
trial run. Videoconferencing affords the ability to have as relaxed
or formal of a proceeding as dictated by the nature of the dispute
involved.
Arbitrations are also proceeding by remote means. American
Arbitration Association Commercial Rule 32(c) allows for an
arbitrator to use video “when deemed appropriate.” Anecdotal
evidence indicates that arbitrators, and most important, parties and