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April 15, 2020

Alternative Dispute Resolution Services in the Age of Coronavirus

The COVID-19 pandemic is impacting the economic and legal landscape in profound ways.  Non-essential businesses have seen their revenues decrease significantly, and many individuals are furloughed or unemployed.  Case schedules in many litigation matters are being delayed, and it is anticipated that the state and federal courts will experience significant backlog in the months ahead, in spite of their continued hard work.  Due to potentially protracted schedules and general economic climate, clients might have concerns about having the ability to pay for ongoing litigation, and new disputes might arise as the result of the sudden economic downturn.  As a result, many of your clients might need submit their pending matters to ADR as soon as possible.

Given current social distancing requirements, ADR proceedings must be conducted on an entirely remote basis.  You might have concerns about whether an ADR proceeding will be as effective on a remote basis.  While nothing can substitute for face-to-face proceedings, we believe that remote ADR proceedings can be effective.

Here are some tips for effective remote ADR proceedings:

  • Pre-conference communications can be via telephone or e-mail, but the actual conference should take place by videoconference.
  • ADR practitioners should not require paper copies of submissions, or any other physical submission such as thumb drives.
  • ADR practitioners should send out easy-to-use instructions as far in advance of the proceeding as possible. This can ensure that everyone is ready for “game day,” and will cut down on delays and interruptions related to technological learning curve.  The instructions should include:
    • A step-by-step guide for downloading and installing any necessary application.
    • A step-by-step guide for how to use the application once they have downloaded and installed it. Actions individuals will need to perform include ensuring their video and audio are turned on, muting (for more about muting, see below), and sharing documents or presentations by videoconference.
    • A guide for videoconference etiquette.
  • ADR Practitioners should send out invitations that include complete information about the videoconference. This means that the invitation should include the date of the mediation, the time of the mediation, and a link or complete dial-in information for the meeting.
  • ADR practitioners not only should have a solid understanding of the technology they are using, but also how to lead videoconferences effectively. Some tips on how to lead a videoconference effectively are:
    • Understand how to control the “mute” button. The ADR practitioner should consider placing everyone on mute unless it is their turn to talk during sessions in which all parties are present.  This will minimize the potential for background noise, and, importantly, ensure that participants feel that they are having their chance to speak without interruption.
    • Understand how to use the application from a non-host perspective, in order to be able to give clear instructions to participants if they are having difficulty.
    • Understand how to engage in a private caucus with each party. This might mean setting up different “meeting rooms,” or conducting separate video conferences apart from the initial conference that includes all parties.
  • Of course, all of the foregoing tips require that ADR practitioners and participating attorneys have acquainted themselves with the relevant technology, and have thoughtfully considered how to conduct the conference BEFORE the conference begins.
  • ADR practitioners and attorneys also should consider how to ensure that attorneys and clients have the means to communicate privately during the mediation. This could be as simple as texting or e-mailing during the mediation, or it could mean taking breaks during the mediation to have a private conference.

As you find your clients requiring fast and efficient ADR proceedings, Berger Harris’s ADR group is prepared to assist with that need.

Brian Gottesman is a Superior Court certified mediator. He is a member of the Panel Distinguished Neutrals of the International Institute for Conflict Prevention & Resolution. Brian has served as a mediator and as an arbitrator in a wide variety of commercial and corporate disputes, including fiduciary duty and contractual disputes. He is a contributing author and co-editor of Litigating the Business Divorce (BNA, 2016).

Suzanne Holly is a Superior Court certified mediator who is listed on the United States Bankruptcy Court for the District of Delaware’s Register of Mediators and Arbitrators.  Suzanne has experience mediating contract disputes and preference proceedings. She is an officer of the Alternative Dispute Resolution Section of the Delaware State Bar Association.

If you have any questions about our tips on conducting remote ADR proceedings, or about our ADR services, please feel free to contact Suzanne Holly or Brian Gottesman at (302) 655-1140.