Mediation and the Right Side of Now

We already have the means to solve the Covid-19 legal logjam

Georgia’s legal community faces a situation described by the Chief Justice of our Supreme Court as “unprecedented in the history of the state.” In response to Covid-19, Chief Justice Harold Melton issued a Judicial Emergency that shut down most of the court system on March 14th—a decision he has re-instituted in some form every 30 days for the past five months.

If current trends continue, with Georgia just last week reporting the highest rate of new Covid-19 cases in the country, it is highly likely that Chief Justice Melton will have to extend the Judicial Emergency for another month past its current mid-September end date. As a result, there is a logjam of cases across the state. And though certain non-jury operations and court filings have continued during this period, it is clear the current strategy of delaying until better days are here is not working. It is also clear that Chief Justice Melton has taken notice, writing in his latest Judicial Emergency:

“With regard to all matters in this challenging time, all lawyers are reminded of their obligations of professionalism. Judges are also reminded of their obligation to dispose of all judicial matters promptly and efficiently…although this obligation must not take precedence over the obligation to dispose of matters fairly and with patience, which requires sensitivity to health and other concerns raised by court officials, litigants and their lawyers, witnesses, and others.”

The ever more problematic logjam, while most acute in criminal matters is also of great concern in civil cases. These issues often directly impact the livelihoods and health of individuals and their families. For civil litigants already facing monumental levels of pandemic-induced stress, further delays in justice are almost unthinkable. For them, now is the time for Alternative Dispute Resolution (ADR).

In full disclosure, I am a mediator, so I will always be able to make a positive case for mediation and other forms of ADR. Today, however, I make that case as an attorney concerned with how the legal community has responded so far to the pandemic. From my vantage, ADR professionals have greatly adapted to the new reality, showing significant flexibility in mediating cases in person as well as virtually. We have done so thoughtfully and in line with Chief Justice Melton’s urging that as legal professionals, we dispose of cases fairly, with sensitivity to health and in an expeditious manner.

While most pretrial proceedings and bench trials have moved to a virtual format, this strategy has yet to provide relief to the crisis—perhaps this is due to how many attorneys are simply not comfortable with bench trials over jury trials, as they may not always be in the best interests of their clients. Virtual jury trials are seriously being considered, but they are not a valid way forward. They present ample technological and procedural worries, not the least of which would be the inability for jurors to securely isolate, deliberate, and vote. Additionally, virtual juries would not reflect a true cross-section of our communities, as there are many residents who would be excluded from the pool of potential jurors due to lack of high-speed internet access.

Contrast problematic virtual jury trials with virtual mediation, an already proven option for resolving cases. In a virtual setting, the mediator is present to ensure the process is as fair, inclusive and safe as possible for all parties. It also means that there is a plan in place to ensure everyone has access to the needed technology. Yet despite the advantages of ADR—and the ever-pressing need for the legal world to switch to an alternative form of resolution—far too many attorneys remain opposed to the idea of virtual mediation. There are some who do not want to mediate because doing so via video strikes them as an uncomfortable environment requiring a different set of skills than what they are used to exercising in person.

I get it. Video conferencing can be a strange exercise—at first. And to be fair, like others, I do miss the social, even fun aspects of meeting in person to mediate—as I imagine other attorneys miss in-person depositions and conferences. And yes, there have been other hiccups along the way but none of these have been so insurmountable that I would consider the alternatives of not closing out cases and not making sure parties receive the closure they might desperately need.

With the economic floor under all too many people collapsing the answer for all of us should be obvious. People need to see their cases resolved, so that they can either be compensated for the wrongs that have befallen them or receive the freedom to move on to other pressing business, financial and personal matters.

Mediating cases now and during the months to come is also a reaffirmation of our values as legal professionals. It means understanding and supporting those parties and fellow attorneys who cannot appear in person because they have compromised immune systems or need to stay home to take care of children and other loved ones. It also means complying with Chief Justice Melton’s guidelines that we dispose of matters with “sensitivity to health.” After all, if we are to ensure justice for all Georgians, we each need to be healthy and ready to serve our clients and the communities in which they live.

Credit: Winter Wheeler
link: Mediation and the Right Side of Now.