Alternative Dispute Resolution Gains Importance While the COVID-19 Pandemic Continues
By Michael C. Sanders
As the COVID-19 pandemic drags on, litigants will need to increasingly turn to alternative dispute resolution if they want a timely conclusion to their case. Any resolution that depends on a trial before a jury will be severely delayed, regardless of whether the case was set for trial in 2020. The Texas Supreme Court issued orders prohibiting any jury trials due to the pandemic. No one can say with any certainty when civil jury trials will resume in Texas. With the number of new COVID-19 cases on the rise and no end to the pandemic in sight, parties should strongly consider alternative dispute resolution.
No Civil Jury Trials Any Time Soon
No jury trials are taking place in Texas state and county courts, and when civil jury trials will resume is anyone’s guess. Early in the COVID-19 pandemic, the Texas Supreme Court issued an order prohibiting jury trials. There have been multiple extensions of that order. The most recent order extends the ban on jury trials to August 31. There is no guarantee that the Texas Supreme Court will not extend the prohibition on jury trials again. When jury trials do resume, they may be limited to criminal cases. Even if the Texas Supreme Court does not extend the ban on jury trials beyond August 31, Texas will have gone almost six months without any criminal jury trials. Criminal defendants have a right to a speedy trial, so courts may be forced to reserve jury trials for only criminal cases. There is a very real possibility (and some would say probability) that civil jury trials will not occur until 2021.
Assuming civil jury trials do resume in 2021, the courts will have a backlog of cases waiting to be heard by a jury. The Texas Rules of Judicial Administration provide that a civil jury case should be disposed of within 18 months of the defendant filing an answer. The normal wait for a civil jury trial in most counties is two years. Because of the current ban on jury trials, the usual time frames could be extended by many months, or possibly even years. A case filed in 2020 might not go to trial until the year 2023. In cases that involve ongoing activities such as oil & gas operations or the operation of a business, such a delay can have a severe adverse effect on all parties concerned. While civil jury trials will probably start again in 2021, that does not necessarily mean that your case will go to trial in 2021.
Mediation—A Day Focused on Settling the Dispute
Laying aside the delay in jury trials, litigation is still an expensive and stressful process in the best of times. The restrictions brought on by the COVID-19 pandemic, accompanied by an economic recession, only exacerbate the negative effects of litigation. Spending precious funds on litigation while many companies are strapped for cash is not the best option. Combined with the continued prohibition on jury trials, these factors make alternative dispute resolution a more attractive option.
Mediation is usually the first and only type of ADR utilized in most disputes. Mediation has a high success rate, and there is very little downside to attending mediation. The process is confidential, and the mediator cannot impose a settlement. As a neutral third party, the mediator can give feedback on each party’s case, filter out the negative emotions in the parties’ communications, and focus the parties’ attention on the dispute for a day. This combination frequently results in a settlement at the mediation or soon after. Other than the mediator’s fee and a day of the parties’ time, nothing is lost as the result of an unsuccessful mediation. Due to its low cost and high success rate, many courts require pre-trial mediation in all lawsuits. With or without a court order, mediation is a better option than continuing to wait out the delays caused by the COVID-19 pandemic.
Although the parties may have already mediated without success, now is the time to reconsider whether the case can be settled. If the parties are only waiting for trial, they should spend one day of that wait in mediation. Mediation may have been unsuccessful before COVID-19, but economic priorities and realities have likely shifted since the pandemic hit. Parties that have not been to mediation at all should unquestionably consider it, whether a lawsuit has already been filed or the dispute has not yet reached the courthouse. Now, more than ever, parties should explore mediation as an option for bringing their disputes to an end.
Arbitration—The Alternative to a Bench Trial or Waiting to Get a Jury
If a case cannot be settled and a jury demand has been filed, the parties have three options: 1) continue to wait for civil jury trials to resume and then wait to be reached on a jury trial docket; 2) agree to waive the jury and try the case to the bench; or 3) agree to some form of binding arbitration. Assuming both sides agree that they should not wait for a jury trial, they are left with the choice between a bench trial and arbitration. Even without a contract containing an arbitration clause, parties to a lawsuit can agree to submit their case to arbitration after suit has been filed.
There are significant advantages to choosing arbitration over a bench trial. Arbitration is said to be “better, faster, and cheaper” than litigation. This can be true, but the parties and the arbitrators can cause arbitration to be slower and more expensive. The lack of a significant right of appeal leads some to argue arbitration is not better than litigation. The delays in trials, both jury trials and bench trials, caused by the COVID-19 pandemic weigh significantly against the potential drawbacks of arbitration.
One of the most important advantages of arbitration is the ability to select specialists to resolve the dispute. Trial judges, who usually exercise criminal, civil, and family jurisdiction, must by nature be generalists. Unlike in a bench trial, the parties have the option of choosing an arbitrator or panel of arbitrators with expertise in the field that is the subject of the lawsuit. The arbitrators having significant experience in the area of the dispute is one of the biggest selling points for arbitration.
Arbitration is likely to lead to a decision faster than a bench trial. A decision from a bench trial can be delayed for many months. Few judges rule from the bench at the end of a non-jury trial. Most of the time, the judge will announce that the matter will be taken under advisement. Unlike a jury trial where the verdict is read at the end of the trial, the parties to a bench trial usually walk out of the courthouse with no decision and no certainty as to when they will get a decision. It is not uncommon for parties to wait for several months before receiving a ruling from the court. In contrast, arbitration agreements and rules usually provide for a deadline by which the arbitrators must issue a decision.
Another practical benefit of utilizing arbitration over a bench trial is that there is no docket to compete with. It is much easier to get a setting for a final hearing and the parties are guaranteed to go forward on the selected day. This is an especially significant advantage now—if the parties need assurance that they will have their trial by a certain date, then arbitration is their best bet. When a case is set for a bench or jury trial, parties must often wait until docket call or sometimes even the day of trial to find out whether their case will be reached.
Arbitration also offers more finality than a bench trial. A judgment from a bench trial can be followed by a lengthy and expensive appeal. Generally, an arbitration award can only be vacated for very limited reasons. The argument that the arbitrators made an incorrect legal or factual decision will usually not support an arbitration award being overturned. Some would argue the loss of a right to appeal is a reason to never agree to arbitration. However, parties can agree to a limited right of appeal. If an arbitration proceeding is subject to the Texas General Arbitration Act, Texas Supreme Court precedent allows the parties to contract for grounds for reversal that would not otherwise be available. Some arbitration providers and rules, such as the American Arbitration Association’s rules, allow the parties to incorporate a limited appellate mechanism into their agreement to arbitrate. Even if the parties agree to a narrow appellate procedure, an arbitration award provides more finality than a judgment entered after a bench trial.
With its advantages over a bench trial or the potentially indefinite wait for a jury trial, arbitration’s value continues to increase during the COVID-19 pandemic. Especially in the context of a commercial dispute, the parties should strongly consider whether they want to endure the years of continuing uncertainty that goes with trying their case to the bench or waiting to someday go before a jury. The longer the COVID-19 pandemic goes on, more and more parties should and will turn to arbitration.
Mediation and Arbitration During a Time of Social Distancing, Face Coverings, and Limits on Gatherings
Despite the restrictions imposed by state and local governments due to the COVID-19 pandemic, the legal system—including mediation and arbitration—continues (albeit without jury trials). Throughout this pandemic, legal services have been categorized as essential business. The judicial system (of which attorneys are a key component) is included in the federal government’s definition of critical infrastructure. Although jury trials are currently off the table, dispute resolution can and must proceed.
Most, if not all, alternative dispute resolution proceedings can be conducted through videoconferencing. Countless mediations have already been conducted through videoconferencing during the COVID-19 pandemic. The videoconferencing platforms available include the ability to put participants into private breakout rooms. Preliminary hearings in arbitration proceedings can certainly proceed through videoconference in the same way that courts are conducting hearings on ZOOM and other platforms. Just as courts have conducted bench trials and evidentiary hearings by videoconference during the pandemic, arbitrators have conducted final hearings with live witnesses on videoconferencing platforms. With the availability of videoconferencing, COVID-19 does not pose a significant obstacle to mediation or arbitration.
For those who insist that mediation or a final arbitration hearing be conducted in person, options do exist. Many hotels, office buildings, and executive suites have large conference rooms available for rent by the day. With a big enough room, the parties, their attorneys, the ADR provider, and other necessary attendees can maintain the preferred six-foot distance. However, pursuant to current restrictions, participants should still wear face coverings during an in-person mediation or arbitration. Some would argue that an exception should be made for a witness testifying at an arbitration final hearing. The arbitrators must be able to assess the credibility of the witnesses. The witness not wearing a mask would allow the arbitrators to better judge credibility. Another idea that has been proposed is the witness wearing a clear face shield as opposed to a mask. Although videoconferencing is the preferred method for ADR proceedings during the current health crisis, in-person mediation and arbitration are possible and will become more available again in the future.
In the Absence of Civil Jury Trials, Parties Should Utilize Alternative Dispute Resolution
With jury trials on hold for the foreseeable future, parties to a dispute should be more open to alternative dispute resolution. Mediation is a very appealing option even if the parties have already attended mediation. In the event mediation is unsuccessful or unlikely to be fruitful, arbitration will likely bring a resolution faster than a bench trial or waiting for a resumption of civil jury trials. Disruptions caused by COVID-19 are likely to last for several more months. Rather than continuing litigation during this pandemic, parties should discuss how they may be able to resolve their differences through mediation or arbitration.
Michael C. Sanders is the founding partner of Sanders LLP and is available to serve as a mediator or arbitrator. He received his mediation and arbitration training from the A.A. White Dispute Resolution Center in Houston. Mr. Sanders is also an Associate of the Chartered Institute of Arbitrators. He can be reached at firstname.lastname@example.org or 713-338-2677.