Alternative Disputes Resolution in the Age of COVID-19
Our judicial system was designed to resolve disputes. Trial by a jury of one’s peers is one of the hallmarks of our society. What happens when it comes to a halt? In March, our court system ground to a halt, first, when County Health Officers and then when the State mandated closures. Following the unprecedented shutdown, the State has been thrown into a massive budget deficit leading to furloughs, lay-offs, and closures, resulting in reduced services. One court simply shut down following the reopening in order to deal with the loss of revenue. Several counties have canceled jury trials for the remainder of the year, but disputes continue. Alternative Dispute Resolution is needed more now than ever to resolve ongoing disputes among families, neighbors, individuals and businesses.
Alternative Dispute Resolution or ADR, as it is more commonly known, is a group of methods for resolving disputes short of the courthouse. The more commonly used ADR processes are Mediation and Arbitration. Many parties have been using these alternative procedures for years. In fact, many employment and purchase contracts contain Mandatory Arbitration Clauses.
Arbitration involves the parties choosing one or more “Arbitrators” to hear arguments and testimony from all sides. The Arbitrator(s) then decide the dispute. Arbitration rules are generally governed by state law. The Arbitrator’s decision can be either final (binding) or non-binding or advisory. The benefits include a final decision and a hearing that can be scheduled as soon as possible. The drawbacks are someone else decides the dispute for you and if it is binding, there is no right to appeal the Arbitrator’s decision.
Mediation involves a hearing facilitated by a neutral third party who generally receives hours of special training. Mediators vary in style from someone who shuttles back and forth to help the parties reach a resolution, to someone who will argue the strengths and weaknesses of the dispute to help the parties understand the different positions and reach an agreement. In order for any settlement to be binding, parties can memorialize the terms of the agreement in writing.
There are other dispute resolution methods that involve taking parts of Arbitration and Mediation. The point being, these processes are outside the troubled court system and may be a way for you to resolve your dispute in a timely, cost-effective way.
Borton Petrini, LLP can assist you resolve your disputes. Contact your local Borton Petrini, LLP office for assistance.
Mark Shem is a partner in our San Jose office of Borton Petrini, LLP. He is an experienced litigation attorney with a background in a wide variety of practice areas, including business litigation, construction law, real estate law and general civil litigation.
Legal Disclaimer: This article is designed for general information only. The information presented should not be construed to be formal legal advice, nor the formation of a lawyer/client relationship.