Chief Administrative Judge Lawrence Marks’s administrative order in combination with Governor Cuomo’s PAUSE (Policies Assure Uniform Safety For Everyone) executive order eliminate all but emergency in-person legal proceedings in the courts of the State of New York. As such, the courts are largely unstaffed. Surely, those measures are necessary to combat the novel coronavirus known as COVID-19.
Law firms have mobilized their attorneys and staff to telecommute and conduct the business of the law remotely from our homes. But the question remains: “What is the legal community to do with the thousands of pending cases during the suspension of court appearances and the closure of the court houses?” Cases ready for trial are in an indefinite state of suspense. When the courts reopen, the trial assignment parts will be overwhelmed. The mail will pile up. The e-filing system is also in a state of suspense and will be understaffed. Our already overburdened court personnel may never catch-up with the backlog without a drastic increase in personnel. That is not likely to happen in the aftermath of the economic crisis. When the courts reopen, general civil cases will be mired down by the overwhelming backlog and the priority of first addressing criminal and family law cases.
Civil litigators cannot properly service their clients, nor can they make payroll, by merely pushing paper and waiting for the courthouse doors to reopen. They need to take action to keep their cases moving and to push their cases toward resolution. The combination of ADR and technology can provide an efficient and cost-effective alternative to the inertia of inaction. Don’t sit on the sidelines. Be proactive. Think outside the box.
The following suggestions may be accomplished by video conferences or telephonic hearings – all in compliance with the directives of the Chief Administrative Judge and Governor Cuomo’s PAUSE executive order. Mediation and arbitration have long been recognized and utilized as an efficient and cost-effective means of resolving civil disputes in a non-emergent traditional ADR milieu. With the advent of video conference technology, the closure of the courthouse and the shelter-in-place directives need not impede the resolution of cases. Neutral mediators and arbitrators may be retained for less traditional, limited purpose, perhaps emergency, ADR engagements. A neutral may be engaged to assist in the resolution of emergency discovery disputes, supervising depositions and addressing dispositive motions on framed issues. A properly crafted arbitration clause may also include procedures for appeal or challenges to the Arbitrator’s decision and award outside of the context of Article 75. Of course, the parties can also agree to submit limited issues to a non-binding mediation. The utility of ADR for assisting counsel in these uncertain times is limited only by the imagination and willingness of counsel to draft an agreement that sets reasonable boundaries of the arbitration or mediation.
For years, state-of-the art video conference technology has become an option for clients as the need has arisen. This is no longer an option. Economic and social isolation is upon us. NAM (National Arbitration and Mediation), has the technological capacity to assist its clients in navigating the transition from face-to-face mediation conferences and arbitration hearings to video or telephone conference hearings, whether they be for the traditional ADR milieu or the more emergent needs during the time of courthouse closure.
Video conference technology now allows participants in remote locations to simulate a secure virtual joint session hearing room where the attendance of all participants is known to each other. The video hearings and conferences can then be broken out from joint sessions to secure caucus rooms, switch from one caucus to another, and then back to the joint session, as the need arises. The technology also allows for the secure transmission of documents, PowerPoint presentations, photographs and the like. Submissions may be shared with, and downloaded by, all participants or confidentially with the Neutral.
Needless to say, improvements in technology have made remote conferencing an option for attorneys and parties who cannot travel to the hearing site. Today secure video conferencing is no longer an option. It is a necessity. The transition from in-person hearings to “virtual” hearings can be seamless. As a neutral trained in the technology, I look forward to being able to do my part in keeping the business of the law moving forward during this “new normal” in which we live.
Indeed, the utilization of this technology during the coronavirus crisis may be the only option for the legal community to forge ahead with the business at hand. With the interruption of ‘business as usual’ that COVID-19 has imposed, the use of video technology in ADR can assist in the achievement of just and cost-effective resolutions of legal disputes in a secure, video-conferenced environment.