Beyond The Will, Client Compass

Resolving Cases During the Pandemic

August 27, 2020


Alternative dispute resolution (“ADR”) is a broad term to describe methods to resolve a case outside of the traditional courtroom, such as through mediation and arbitration.  Before the pandemic, cases often resolved through ADR; however, since the pandemic, there has been an uptick of cases employing ADR methods.  The obvious reason for the uptick is the backlogged court system.  This presents an opportunity for parties who want to try to take control of when and how their case resolves.

The first method is mediation, which is commonly used to resolve probate and trust litigation cases.  In mediation, both sides agree upon an impartial mediator, who is often an experienced probate litigator or a retired judge.  The mediator’s role is to help the parties agree upon a resolution.  During the pandemic, mediations are typically conducted by Zoom.  There is a host, often the mediator, who virtually meets with all parties and then conducts break-out sessions with each side.  After the mediator meets privately with our side, we often have another settlement discussion with only our client without the mediator, and it is good practice to have such private settlement attorney-client discussions over the telephone.  This is similar to the deposition procedure Tiffany Bentley discussed in her recent blog.  The mediator typically goes back-and-forth between the parties to assist them in reaching a settlement.

As with mediations before the pandemic, each party submits a confidential mediation statement to the mediator in advance of the mediation, which helps prepare the mediator about the background facts, issues in the case, and settlement position.  And, as with mediations before the pandemic, each party can show the mediator additional materials during the mediation, albeit through the “share screen” function of Zoom or through email.   If the parties reach a resolution during the mediation, the mediator or one side can type a short term sheet and circulate it for signature. A longer settlement agreement is drafted and signed by the parties after the mediation, similar to pre-pandemic.

If the parties do not settle during mediation, all is not lost.  Often the second day of mediation is scheduled, or at least a follow-up call with the mediator occurs. Sometimes a final effort is made through subsequent written settlement offers between counsel.  Typically when parties have participated in a mediation and made progress, they are interested in reaching a resolution, even if it occurs days, weeks, or months later.

The second method is arbitration.  This method is similar to mediation in that the parties also agree to use an impartial third-party.  The impartial third-party could be an experienced probate litigator, retired judge, or an experienced litigator trained by the American Arbitration Association, and the parties could use one or three arbitrators.  Unlike in mediation though, the arbitrator “decides” the outcome of the case.  The parties submit evidence to the arbitrator, and, after the arbitration, the arbitrator makes written findings and issues a decision.  The parties can decide whether the arbitrator’s decision is binding or non-binding on the parties.

With both mediation and arbitration, the parties pay the third-party for their time preparing for and participating in the mediation or arbitration.  Sometimes the parties agree that the trust or estate pays the fee.  While it is an additional expense, it is a worthwhile expense to try to shorten the overall length of litigation.   If a party is interested in resolving the case but without the additional fee of a mediator or arbitrator, counsel can engage in settlement discussions, preferably written, to try to reach an agreeable resolution.  This practice has not changed since the pandemic.

Overall, ADR is a great option now during the pandemic.  This is especially true if the parties or witnesses are elderly, such that waiting for a delayed trial date would be detrimental to the case.  Also, ADR can benefit both complex and simple cases:  complex cases could use the close attention of a mediator or arbitrator, and simple cases could resolve much quicker and efficiently through mediation or arbitration.  Clients always want their case to move expeditiously, and ADR is a great way for clients to take control of their case during this unusual time.

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