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November 30, 2020 Practice Points

Why You Should Consider Opting for Arbitration During the Coronavirus Pandemic

With civil cases piling up and most jury trials postponed, arbitration (and other forms of ADR) may be the answer to efficient conflict resolution during the COVID-19 crisis.

By Joe Meadows

In the beginning, the pandemic shut down courts except for emergency matters. Over time, courts resumed operations, albeit with various safety protocols in place and criminal matters taking precedence.

Eight months into the pandemic, courts are struggling with a backlog of civil cases. For some courts, the backlog may have existed before COVID-19 but has only worsened due to the pandemic.

Courts have responded in different ways to move their dockets along. They have cancelled oral arguments, deciding motions “on the papers” only. They have held hearings or other presentations online or by conference call. But civil jury trials are harder to manage. They cannot be cancelled. They cannot be conducted virtually—at least not easily or perhaps constitutionally, as some practitioners have noted—and certainly not by phone.

As such, courts have had to push out civil jury trials a year or longer. This allows for criminal jury trials to go first. This allows for scheduling of the safe in-person attendance of parties, their counsel, judges, and courtroom staff. This allows for enough time to secure a pool of potential jurors during a time when reporting for jury duty has become a problem.

Yet COVID-19 has led to an increase in many business disputes over contracts, payments, and employment matters that may come with jury trial demands.

One option for litigants is alternative dispute resolution (ADR), specifically arbitration.

This private dispute resolution mechanism allows for speed and flexibility in the scheduling and presentation of evidence and argument. It is not dependent on whether courthouse doors are open or not. Moreover, litigants may be willing to trade a jury trial scheduled a year or two from now for a hearing before an arbitrator in a matter of months.

Under most arbitration rules, parties can agree to resolve their disputes, in whole or in part, in arbitration. This is so even if the parties never considered arbitration at the outset of their relationship or find themselves already in a court battle.

The process to jointly submit to arbitration is simple:

  • Decide on an arbitration forum. American Arbitration Association (AAA), JAMS (formerly Judicial Arbitration and Mediation Services), and International Centre for Dispute Resolution (ICDR) are commonly used ADR providers.
  • Complete, sign, and file a standard submission form. Forms are available on forum websites with boxes to complete for applicable rules, nature and amount of dispute, qualifications of arbitrator, and hearing location.
  • Complete, sign, and file a custom submission agreement. An agreement could require mediation before arbitration, prohibit dispositive motions, set forth discovery and hearing time limits, and even provide for appellate arbitration review.

Before the pandemic, it was debatable whether arbitration was a preferred dispute resolution mechanism. Countless articles discussed how the traditional benefits of arbitration—speed and cost—may no longer hold true when parties in arbitration act like they are in litigation: filing dispositive motions, engaging in extensive discovery and depositions, and conducting trial-like hearings over multiple days or sometimes longer.

But right now, the slowdown in the civil court system—particularly delayed jury trials—gives an edge to arbitration. Instead of cases lasting years, jammed up with discovery disputes, and dependent on courthouse access, arbitrations can be resolved under a year, without significant discovery, and from anywhere where there is an internet or phone connection.

Simply because civil cases are piling up in the courts and jury trials have been postponed does not mean that business disputes cannot be resolved quickly. Arbitration (and other forms of ADR, like mediation) may be the answer to efficient and more timely conflict resolution during the COVID-19 crisis, and should be strongly considered by counsel and clients alike.

Joe Meadows is a shareholder with Bean, Kinney & Korman in Arlington, Virginia.

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