The Atlanta Lawyer April 2020 | Page 28

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