It goes without saying that all aspects of our lives are affected by the dangers and restrictions imposed by the current COVID-19 pandemic. On the professional side, for those who practice civil and commercial litigation, courtrooms are closed. We are basically banned from practicing law out of our offices and all of the scheduled court appearances, deposition dates and other mandated discovery responses are extended, often without date. This article is addressed specifically to the impact of the pandemic on previously scheduled and contemplated mediations.
None of us are sitting back waiting for the “curve” to “flatten out” and disappear; for travel, even to our offices, to become possible or practical, for the courts to open and for appearance and discovery dates to be imposed. We all have clients whose need for legal services continues; law firms and smaller professional offices that can only be supported by some degree of continuing revenues and an opportunity to prepare, for example, affidavits, briefs and discovery responses that will be required when the courts to a substantial degree open up.
The focus of this article is mediation and specifically the savings in client management and staff time in addressing the litigation issues during the remaining multi-year course of the dispute. Whether the mediation session should precede, take place during the course of, or await the conclusion of document and deposition discovery, there should be no question that the session should take place “the sooner the better.”
The specific issue before us then, is whether the decision to mediate and the scheduling of a session should take place now or, for some reason, await the opening of the courthouses and the imposition of enforceable appearance and discovery response dates. That decision can only be made if it is possible at this point in time for the mediation firm or mediator to make the arrangements for consultation with counsel beforehand, review pleadings, past decisions and mediation statements and, of course conduct the session itself.
Many of those elements of mediation are still easily achievable. The main problem lies with the establishment of a location for, and the mechanics of, the session itself, in view of the public health limitations placed on us by the virus and our leaders at every level of government.
Every mediation will involve at least five participants – two clients, two attorneys and the mediator. That number grows exponentially as parties in interest are added, associate attorneys are enlisted and additional client representatives, including insurance carrier representatives, are added. Historically, all of the above, can be handled in one set of offices through a fairly large conference room and one or more additional smaller offices to permit the caucuses. That distribution of personnel, with the current pandemic limitations in force, is no longer possible for the immediate future. All of the constraints that are being placed on inter and intrastate travel and the social distancing and quarantines that we have imposed on ourselves, dictate that the traditional single site model for a mediation session will no longer work in most cases while the pandemic limitations are in effect. Additional space in the same building does not solve the problem; what is needed to meet the clients growing demand for mediation as early as possible, are video and telephonic systems that NAM can provide from multiple locations.
The circumstances described above, suggesting a delay of the mediation session until after the travel and distance restrictions are lifted, do not apply in all circumstances.
For example, when the likely result of the mediation will be a commitment on the part of one of the parties to pay a substantial sum, as money damages to one or more of the claimants, the ability of the party making the payment is always an issue. Whether it is a result of the currently depressed national economy or just the effect of those conditions on the value of the payor's business interests and other substantial assets, he or she may well decide that now is the time to negotiate since an upswing of the economy and a resulting increase in the values of those properties is far from guaranteed.
Another factor to be considered as to the timing of the mediation is the fact that, when the current crisis ends, there will be enormous pressure placed on litigation counsel as a result of all of those deferred and adjourned dates. All of those hearings, arguments, litigation papers and trials will be ready to move forward, yet will the court have the capacity to hear those cases all at once? In all likelihood, no…and the backlog that face the courts may only get worse. We should seriously consider whether, in a given case, it makes sense that a specific contemplated mediation should move forward now, to be concluded as quickly as possible.