Alternative dispute resolution has always been important to help resolve cases short of a jury trial. Defendants can save costs by concluding the case early, and plaintiffs are able to realize the cash value of their case without lengthy court delays and uncertainty. As a result of the pandemic, court delays have been drastically magnified, and so has the importance of ADR.
Before COVID-19, judges in metropolitan areas could place a case on a trial calendar, and trials would be held within a matter of months. Since COVID-19, delays are now measured by how many years a party must wait to have their day in court. The reason is simple: Criminal cases must take priority.
Even with a demand for a speedy trial, some defendants have been waiting in jail since 2019 for their jury trial! Additionally, post-COVID jury trials take longer to complete due to COVID precautions. Felony trials typically take at least one week, but now take longer.
Court-ordered mediation is now more common. Given that COVID-19 court delays are here to stay for the short term, I urge parties at mediation to think outside the box in how they define success in mediation. Obviously, a full settlement of the case is always preferred. But when this is not possible, consider putting a faster resolution method on the negotiation table.
I regularly have a discussion with both sides about alternatives to court delays when it is clear a full settlement won’t be reached on the day of mediation. It goes something like this to the defense: “If I can get plaintiffs to waive their right to a jury trial, would you be interested in selecting an arbitrator today so the case can be resolved in the next 30 days?”
It goes something like this to the plaintiff: “If I can get your case decided in the next 30 days, would you be willing to tap a fair person to decide the case?”
It is a win-win for both sides in many cases, especially when the parties get to choose the “juror” who will decide the outcome. Plaintiffs have their favorite arbitrators, and so do defense attorneys. Once the decision to arbitrate is reached, the next hour is spent on negotiating who will be the neutral arbitrator.
Another option for cases early in the pipeline (i.e., still in discovery), I suggest agreeing at mediation to using a special master. After all, when will the court have time to hear a discovery dispute in a simple car-wreck case when they are swamped with criminal jury trials?
I pose the same question for domestic relations lawyers who have a need for urgent hearings. Cases cannot typically settle when both sides are waiting for a judge to determine at least initially how strong or weak a case may be.
I believe civil litigants who want to move their cases forward may find a remedy with the consent appointment of a special master. Uniform Superior Court Rule 46 allows the special master to resolve all discovery disputes and even impose contempt sanctions and remedies. And the rule does not just concern discovery. The rule allows a special master to conduct all pretrial proceedings and even conduct a bench trial when consented to by the parties. For lawyers who want to keep the case moving forward, the option of a special master will be especially important to allow cases to move along their normal schedule.
When I was a judge, I limited appointing special masters to cases that needed close supervision for discovery, but not as a matter of routine. From what I have observed, that is not the situation with post-COVID litigation. If you are a civil lawyer and want to keep the case moving through discovery, I suggest the special master option.
If you are satisfied during discovery that the special master will be fair to your side, it may be that both sides can later agree to the special master resolving the case by consent of the parties.
I recommend this option not only in injury cases, but also in business disputes and domestic cases where time is of the essence. The ramifications of a two-year delay in a business case or a divorce case is almost impossible to contemplate in some cases.
Being open to alternatives to the current COVID-related court delays is the key. It is not practical in every case for the plaintiff or the defense, but when possible, having an outside-the-system option can help the parties ultimately resolve the dispute in a manner much more agreeable to the parties.
RANDY RICH is a mediator and arbitrator with Henning Mediation & Arbitration Service in Atlanta and of counsel at Taylor English Duma. He also served as a superior court and state court judge for 16 years.