COVID-19 Increases Interest in Alternative Dispute Resolution

Authors: Levi Y. Silver and Mei-Ying M. Imanaka

Updated: 6/3/2020

Alternative Dispute Resolution (ADR)—an umbrella term referring to various venues and processes for resolving disputes, or parts of disputes, outside court—has long been an attractive alternative to litigation in court.  ADR is often viewed by clients as a faster, more cost-effective mechanism for resolving disputes.  Parties and litigants utilizing ADR enjoy more control in shaping procedures, are more likely to preserve relationships with opposing parties due to the less adversarial and more relaxed atmosphere of ADR, and often report higher overall satisfaction in ADR processes and outcomes.

The COVID-19 global pandemic is further increasing interest in ADR—and for good reason.

After the World Health Organization declared COVID-19 a global pandemic on March 11, 2020, governments around the world and throughout the United States rushed to institute measures to mitigate the spread of the virus, including travel restrictions, shelter-in-place (or stay-at-home) orders, closures of nonessential businesses, and curtailment of various government services.  The effects of COVID-19, and the ensuing economic shutdown, are truly massive.  Their impact—including on California’s administration of civil justice—will be felt for years or decades.

California’s judicial system provides an essential government function and public service: it administers justice for millions of citizens.  Serving a population of more than 39 million people—about 12 percent of the total U.S. population—it processes over five million cases a year.  It employs approximately 2,000 judicial officers and more than 17,000 judicial branch employees statewide.  It handles both civil and criminal cases, as well as family, probate, mental health, and juvenile cases.

Even before the harrowing effect of COVID-19, California’s judicial system was grappling with congested calendars, a shortage of resources and funds, and depleted support staff.  In response to the COVID-19 pandemic, courts throughout California have temporarily closed or substantially reduced operations, resulting in delayed justice in many cases and large backlogs of matters for court staff to work through as courts begin the reopening process.

At the same time, COVID-19 is not only highlighting many of ADR’s longstanding advantages, it also is spurring further innovation among ADR providers.  Now more than ever, parties anticipating potential litigation, or in the midst of active litigation, should consider available ADR options.

Challenges to Swift Access to Justice in the Courts Due to the COVID-19 Crisis Highlight the Advantages of ADR, Technology, and Virtual Dispute Resolution

Court closures have resulted in hearings and trials being taken “off calendar,” causing a large accumulation of matters that must be restored to the courts’ already-full calendars.  As courts slowly reopen, they must work through these substantial backlogs even as new matters flood in.  Courts face these daunting challenges while their ongoing operations also adjust to new COVID-related protocols designed to protect court employees and the public.

Civil litigants are confronted with the additional obstacle that courts are understandably prioritizing their backlogs of criminal, family, probate, mental health, and juvenile matters.

Enter ADR.  Already widely perceived as having various material advantages over court litigation, ADR is confronting the unique issues caused by COVID-19 with innovation and accommodation.  ADR providers, including mediators and arbitrators, are leveraging technology to hold conferences, depositions, hearings and even arbitrations remotely—often across state or national boundaries.  They are utilizing technology, including virtual and online platforms, to conduct ADR sessions.  They are working collaboratively with parties to customize alternatives to dispute resolution in order minimize delays and disruption caused by COVID-19 and its aftermath.  Virtual mediations and arbitrations have become commonplace and have proved, in appropriate cases, to be a successful substitute to in-person hearings and proceedings.  Parties and counsel report being generally pleased, and often very satisfied, with ADR’s innovative response to the COVID-19 challenge.

Litigants who embrace and capitalize on ADR’s innovations could reap substantial benefits. 

As one example of ADR’s innovation, the San Diego legal community has collaborated to provide a unique, novel ADR forum in the wake of this unprecedented public health crisis, RESOLVE Law San Diego.

The first of its kind in California, RESOLVE Law San Diego is a volunteer effort designed to provide help and assistance to civil litigants in light of the challenges COVID-19 has imposed on the civil justice system.  Upon stipulation and agreement between parties, RESOLVE Law San Diego connects litigants with a retired judge or a qualified local attorney who has volunteered to devote time pro bono to hear mediations, law and motion, and discovery disputes in a streamlined fashion, free of charge.

While RESOLVE Law San Diego is not court-sponsored, the San Diego Superior Court is supporting the program’s efforts and encouraging parties and litigants to utilize RESOLVE Law San Diego as a mechanism to resolve disputes.  Participation in RESOLVE Law San Diego is fully voluntary and by stipulation of the parties.

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Both businesses and individuals should consider how various ADR processes, including mediation, settlement conferences, neutral evaluation, and arbitration, may benefit their current, anticipated, or potential future litigation.

We encourage parties to take this opportunity to carefully review their business contracts and employment documents in order to maximize the benefits of ADR, including arbitration.  Well-crafted ADR clauses in transactional agreements, business contracts, employment materials, and the like allow parties to custom-tailor ADR processes before problems arise—the proverbial ounce of prevention.  Parties in active or percolating civil disputes should consider various forms of ADR and how best to approach this topic with an often hostile adversary who may nevertheless share an interest in ADR’s benefits.  Parties should work carefully and collaboratively with counsel when navigating these challenges.

Stay well.