Dispute Resolution Tools Amid COVID-19 Pandemic: Key Considerations
COVID-19 may delay judicial proceedings all over the world, but it cannot stall the emergence of new disputes. The proliferation of conflicts across industries can even increase given the economic disruptions resulting from the enforced lockdowns. With this current backdrop, litigation may not be the best way for parties to deal with conflict.
Fortunately, Alternative Dispute Resolution (ADR) mechanisms can offer tailor-made solutions to help solve disputes during the crisis. ADRs can be extremely useful tools when used properly.
In a LIVE Webcast, alternative dispute resolution experts Alexander Selarnick (Cooley LLP) and Jeffrey S. Wertman (Berger Singerman LLP) will offer an in-depth discussion of the dispute resolution tools that are expected to arise from the COVID-19 pandemic. Speakers will also provide key considerations that legal professionals should take to better resolve disputes in today’s trying time.
Key topics include:
- Alternative Dispute Resolutions (ADRs): Options and Possibilities
- Impact of COVID-19 Dispute Resolution
- Key Considerations
- How an Efficient Dispute Resolution Agreement Looks Like
Alexander Selarnick, Attorney
Impact of COVID-19
- 2020 will change the way we practice law, both short term and long term.
- Courts have been particularly slowed down across the country, given temporary or ongoing postponement or suspension of litigation
- Many litigants have found themselves stuck — unable to move their cases forward.
- Social distancing and other safety measures have also resulted in an increase of remote depositions and virtual hearings
- Despite these restrictions and backlogs, there has been an increase in disputes
- Ambiguity & money (e.g., insurance litigation, bankruptcy filings)
Alternative Dispute Resolution: Options
- Private dispute resolution organizations have quickly adapted to the “new normal”
- Already on the rise before COVID-19
- AAA, JAMS, Judicate West, etc.
- Existing and new virtual protocols
- ADR mitigates against delays and the risk of further court disruptions.
- Historically flexible and now virtually-tested.
- Two primary types of ADR:
- Should become even more pervasive due to ability to bring people together while maintaining social distance
- Mediators can meet with parties together in joint session or separately in private meetings—using virtual “rooms”
- The impact of the lack of face-to-face interaction remains to be seen
- According to the AAA, it took twice as long to get to trial in federal court than it did to complete an arbitration even before COVID-19.
- Binding or non-binding
- Benefit of non-binding arbitration with limited discovery to provide general understanding of strengths and weaknesses
- Parties should consider the current legal, social and economic environment to determine the most advantageous dispute resolution plan, but there are several key considerations.
- The Nature of the Dispute
- Bet-the-company situation? = Litigation
- Preferable to avoid having an arbitrator decide the fate of the company on a limited record with no grounds for appeal, making litigation more ideal.
- Novel or unprecedented issue? = Litigation
- Litigation is often favorable for the same reasons.
- Industry-specific? = ADR
- Provides the opportunity to select a specialized fact finder.
- Other factors
- Consider the impact of lack of face-to-face interaction
- Bet-the-company situation? = Litigation
- Desire for Speed & Finality
- Provides an opportunity to limit discovery and the duration of proceedings.
- Accelerated timeline may outweigh concerns about virtual process
- Arbitration awards are subject to vacatur under limited circumstances
- More final and less subject to appeal.
- Other factors
- Consider possibility of early dispositive motion practice, which is less common in arbitration
- Relevance of Nonparties
- Nonparty discovery is notoriously challenging to obtain in arbitration
- Courts are split on scope of pre-hearing nonparty discovery
- If nonparties hold important information, litigation may afford greater access.
- Cost Factors
- Arbitration is often considered more cost-effective than litigation.
- Consider whether parties share arbitrator and forum fees and the scope of the ADR contractual provision
- Does it specify costs and fees are paid by the losing party?
- Highly flexible and confidential
Jeffrey S. Wertman, Partner
Berger Singerman LLP
Can an Arbitrator Require Arbitration by Videoconference?
- Review the Arbitration Agreement
- Review Applicable Procedural Rules
- Would the Use of Videoconference Prejudice You?
What are the Key Considerations for Virtual Arbitration Hearings?
- Order for a Videoconference Hearing
- Hearing Record and Recording
- Technical Aspects
- Witnesses and Exhibits
- Hearing Schedule and Logistics
Tips for Successful Virtual Arbitration Proceedings
- Proactively Draft Your Remote Hearing Protocol
- Order, Setup and Test Equipment
- Practice Makes Perfect
- Have a Backup Connectivity Plan
- Prepare Your Witnesses
- Enhance Your Demonstrative Graphics
- Take Clues From Your Audience
Who Should Attend:
- In-House and Outside Counsel
- Corporate Lawyers
- General Counsel
- Arbitration Practitioners
- Dispute Resolution Lawyers
Alex represents corporate policyholders from the earliest stages of insurance policy negotiation through claims, arbitration, and litigation. Alex focuses his practice on directors and officers liability, professional liability, general liability and trade credit insurance, and regularly advises clients on risk management issues and complex insurance claims involving allegations of abuse, sports-related injuries, and other misconduct.
Alex represents corporate policyholders from the earliest stages of insurance policy negotiation through claims, arbitration, and litigation. Alex focuses his …
Jeffrey Wertman is a partner in Berger Singerman and is co-manager of the firm’s Dispute Resolution Team, and co-leads the firm’s Construction Law practice team. He focuses his practice on virtually all aspects of construction litigation, commercial lease litigation, and commercial real estate litigation, and in the state, federal and appellate courts and in arbitration.
Jeff’s construction litigation practice includes representing owners, developers, general contractors, trade contractors, suppliers, sureties, and condominium and homeowners associations. He provides clients with legal advice on many and varied issues, such as construction and design defects and contract claims, including compliance with Chapter 558, Florida Statutes, construction liens, terminations, payment disputes, change orders, delay damages, performance and payment bonds, and developer/association turnover.
Jeffrey Wertman is a partner in Berger Singerman and is co-manager of the firm’s Dispute Resolution Team, and co-leads the …
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Method of Presentation:
General knowledge of commercial litigation
NY Category of CLE Credit:
Areas of Professional Practice
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