Socially Distanced Dispute Resolution
- March 23, 2020
- / Richard Dellinger
- / Articles,Coronavirus COVID-19 Task Force,Alternative Dispute Resolution,Litigation & Trial Practice
To stop the spread of COVID-19, courts are temporarily closing to all but the most serious cases. For centuries, the litigation practice has been face to face. We are all familiar with the trial, where everyone faces off in the same room as a judge and a jury. But, there are other proceedings that are similarly close.
Depositions are frequently taken in the same room with all attorneys in the case, the parties, the witnesses, and a court reporter. Similarly, mediations are in-person proceedings that begin in common rooms and move to separate rooms for private caucusing. Litigants frequently attend hearings in the courthouse, where clients and witnesses attend.
Every trip to the courthouse involves interaction with other members of the public who have their own civil and criminal hearings. And, litigants regularly interact personally with witnesses in person. All of these in-person interactions must be modified during this pandemic.
In this time of social distancing, we are adopting more technological solutions and adapting our practices. We meet with clients by phone or by videoconference. And, we interact regularly by email and text message.
The courthouse hearings have all been cancelled, so we are setting up teleconferences or videoconferences with the judge and opposing counsel. Depositions can now be easily taken remotely. The remote services that we have been employing in the past in select circumstances are now standard practice.
Even mediations can be done by remote service. Technologically-savvy mediators have set up e-mediations, using software like Zoom, for our litigators. These e-mediations have the same capacity for common rooms and private caucusing that are used for traditional mediation. We are finding that dispute resolution can still be accomplished even while everything else seems to be shutting down.
The one area where face-to-face contact is difficult to replicate with technology is the final trial. It is difficult for a fact finder (judge or jury) to judge credibility without “looking the witness in the eye”. But, if the parties agree or in some circumstances when allowed by rule, the witnesses may attend a hearing by videoconference. And, many times a witnesses’ videotaped deposition may be shown in lieu of live testimony. With the proper technology, even a trial could be distanced.
So, while it may seem the system is down or has come to a stop, there are technological advances that allow dispute resolution to proceed. This virus will not kill disputes; rather, it may only serve to create more disputes. The dispute resolution system can continue throughout this pandemic, and our attorneys can help you navigate the system.
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