Even before the COVID-19 pandemic, the waiting time for a case to come to trial was often well over a year. Due to the pandemic, that waiting time has gotten even longer. Many courts have been essentially closed for months, with some still not being fully open yet. This means that cases that were scheduled to go to trial this past spring and summer are only now being heard or rescheduled. Accordingly, new cases will likely not come to trial until 2022 or even later.
Therefore, this is a good opportunity to consider mediating disputes that might otherwise have proceeded in litigation. Mediation consists of bringing in a third party neutral to help the parties come to an agreed settlement of their dispute. Mediation can potentially be used in all times of disputes, including employment, business partnerships, real estate, insurance claims, and divorce and other family law matters.
There are many potential advantages to mediation, including the following:
- The parties may feel more satisfied with the resolution of their dispute since they will have agreed to it, rather than having it imposed on them by a Court.
- Disputes can be resolved more quickly as the parties are not at the mercy of the Court’s schedule and the parties can schedule a time and place that is convenient for them.
- It is not necessary to conduct discovery prior to mediation, but the parties can still agree to conduct some discovery prior to mediation if they so wish.
- The expense of litigation can be avoided or reduced.
- The parties can choose the mediator they want to work with, including potentially choosing a mediator with expertise in the relevant field.
- If they choose, the parties can also select a mediator with a specific style of mediation. For instance, the parties may want to select a mediator who is more evaluative, providing an opinion about what they think the parties should do or what a likely outcome would be in Court. Alternatively, the parties may prefer to choose a mediator who is more facilitative, working to help the parties come up with their own solution.
- Mediators may help the parties to come up with creative settlement options that they might not otherwise have considered or been aware of.
- Mediators can bring an objective perspective to help to calm emotional parties or adjust the expectations of unrealistic parties.
- Defendants may be more likely to pay an agreed settlement rather than a judgment.
It is important to keep in mind that each case is unique and mediation will not necessarily have all of these benefits in every instance. However, it is often an option to consider when a party is looking to resolve a dispute, and given the extended waiting times and other restrictions on litigation in the current climate, parties may want to consider mediation sooner and more seriously than they would have previously.
Additionally, most mediators are currently providing the option of virtual mediations, and virtual mediations will likely continue to be more common going forward. Therefore, mediations can still be accomplished safely and conveniently. (Some mediations are still being conducted in-person, and local rules should be checked if parties are interested in an in-person mediation.) While virtual mediations have existed for quite a while, they were relatively rare in civil litigation prior to the pandemic. However, many people are now choosing to conduct their mediations virtually, through Zoom, or similar platforms. There are many reasons to consider a virtual mediation, including the following:
- Virtual mediations allow even more flexibility in scheduling, as travel is not required and the parties do not need to coordinate their schedules to be in the same physical space, as is required for an in-person mediation.
- Also, virtual mediations may allow the parties to continue working for a longer period of time when they would otherwise have had to leave a physical location. Additionally, the parties may be able to regroup more quickly if a mediation needs to span more than one day.
- A virtual mediation may be less expensive than an in-person mediation as the parties will likely not have to pay for the mediator’s and their counsels’ travel time, parking, mileage, and other ancillary fees.
- The parties may be able to use downtime during a mediation, when the mediator is meeting with the other party, more efficiently.
- Having the parties in separate physical spaces may help to reduce tension and stress of the parties.
There are, of course, also potential downsides to a virtual mediation, such as the possibility of technical problems and the parties not having adequate devices or bandwidth. Also, the parties may not feel the same motivation to settle when they are not in the same space and under the normal types of time constraints. Therefore, it is important to consult with counsel to determine if a mediation is right for a specific case, and if so, what type of mediation is best.