by, Lexicon Legal
COVID has changed nearly every business and service in the United States and the state and federal courts across America are no exception. Delays of weeks or months have been extended to months and even years, causing all types of logistical challenges, but also presenting more settlement opportunities. Litigators who are prepared to negotiate effectively through various methods of Alternative Dispute Resolution (ADR) will be able to resolve their clients’ cases faster and with less expense. We are addressing the challenges facing civil court scheduling, and how Guidepoint can help your firm explore many methods of ADR to find the approach, expert witnesses, and facilitators that will help you deliver results for your clients.
HOW COVID HAS CHANGED CIVIL COURT DOCKETS
In the early phases of the global pandemic, courts – like other entities – were forced to shut down entirely. Some were subject to local emergency orders and others were shut down by the order of the presiding judge, forcing almost every court in the country to stop functioning entirely. This caused an immediate backlog of cases. When many courts reopened at only partial capacity, the number of cases that were heard was limited, causing the initial backlog to grow even worse. The news was especially bad for civil litigators: because criminal defendants have the right to a speedy trial, most courts had to allocate their limited working resources to criminal cases and further delay civil cases on their growing dockets.
Now, more than a year after the initial reports of COVID-19 in the U.S., many courts are able to operate at full capacity once again. Some judges and court administrators have even been able to use teleconferencing to work through their dockets more effectively. But in spite of these gains, there is still a massive backlog of cases caused by the shutdowns. Newly filed cases could take months – or even years – to get a trial date, making settlement a more attractive option. But in order to settle cases effectively, a litigator must find the method of ADR that is best suited to a particular case.
THE MANY METHODS OF ALTERNATIVE DISPUTE RESOLUTIONS
Most litigators have at least heard of the different methods of ADR. Here are some of the most common formats:
SETTLEMENT NEGOTIATIONS
The simplest method of resolving a case without litigation is for the attorneys to negotiate a settlement agreement on behalf of their clients. Settlement negotiations are usually effective in only the simplest of civil matters. The process can be obstructed by complex technical issues, disputes over matters of law, or parties who are unwilling to settle. Any of these issues can make simple negotiations an unsuitable method of ADR for a particular case.
MEDIATION
Mediation is similar to settlement negotiations, but there is a critical difference: a mediator helps facilitate the settlement negotiations between the parties. While the mediator does not have the legal authority to make binding decisions, they are a neutral party who favors neither side and can make objective statements about the strengths and weaknesses of each party’s case. This added objectivity can help move settlement negotiations along when the parties and their attorneys become stuck in their own negotiations.
ARBITRATION
In arbitration, the parties each present their case to an arbitrator, who then makes rulings about the case. The parties can agree to binding arbitration, in which the arbitrator’s decision cannot be appealed to the court without sufficient legal grounds. Even if the arbitration is not binding, it helps the parties to see what an objective party would actually rule on their case. Arbitration is a more formalized and expensive process than mediation. It also carries more weight with the parties – especially when they have agreed to be bound by the arbitrator’s rulings.
USE OF SPECIAL MASTERS
While many litigators do not immediately associate Special Masters with ADR, they can be an invaluable tool in resolving your client’s dispute. Special Masters are appointed by the court to conduct specific tasks on their behalf. They are common in the family court, where parents often spend years having ongoing disputes about a negotiated parenting plan, but they can also be helpful in other areas of civil litigation. For example: consider a civil dispute over a plot of land. The parties might have disputes over their respective equity interests, the ongoing management of the property, an appraisal of the property, or the best use of the land that will maximize its potential value. A special master can weigh in on all these critical issues. If the parties have no areas of agreement, the case might require traditional litigation, but often, there are some areas of agreement in a real estate dispute such as this. By identifying the areas of agreement and agreeing to let a Special Master resolve the remaining issues, civil litigators can resolve real estate disputes with less time and expense than submitting them to traditional litigation. Special Masters can be appointed over a wide range of specialized issues. In addition to real estate, there are Special Masters for nursing home abuse and neglect, business disputes, contract litigation, and many other issues.
HOW GUIDEPOINT CAN HELP LITIGATORS EFFECTIVELY REACH FAIR SETTLEMENT AGREEMENTS
As the world recovers from COVID-19, litigation in many cases is likely to be delayed for months and years to come. Effective settlement procedures are more important now than ever. With the right support services, litigators can inform their strategy before engaging in effective ADR. Contact us today to learn how Guidepoint’s litigation support services can help you negotiate settlements in even the most contentious cases.