Feb. 24, 2021
Making legal services accessible in the time of pandemicSee more on Making legal services accessible in the time of pandemic
The Covid closures changed all that as civil courtrooms shuttered and the ADR industry swiftly evolved into a virtual ecosphere where everyone could meet visually from home and work out matters online.
In the before times, when the pandemic had yet to change the way lawyers try cases, commercial litigator Jesse K. Bolling would warn clients that although the outcome would likely be worth it, a private mediation could mean a 12-hour day with a lot of waiting around.
It would mean flying in clients and others, such as insurance company representatives. There'd be ground transport to an alternative dispute resolution provider's conference room where a retired judge would often spend lengthy periods closeted with the other side while Bolling, an Enenstein Pham & Glass LLP partner, plus an associate, would be billing a combined $1,100 an hour.
The Covid closures changed all that as civil courtrooms shuttered and the ADR industry swiftly evolved into a virtual ecosphere where everyone could meet visually from home and work out matters online. "I had one the other week where I billed for two hours, even though the process took all day," Bolling said. "During the down times I could work on other matters and so could my client."
In a perverse paradox, the devastation wrought by the coronavirus brought a silver lining of new efficiencies to ADR.
To many, these virtual innovations look like the future. "Access to justice has gotten better. The ADR companies converted overnight to online platforms and as a result the trend toward ADR will persist," Bolling said. "Clients like it. Proceeding virtually is more cost effective and easier on clients, witnesses and attorneys. Because arbitrations and mediations moved forward while the courts were closed, people used ADR because they had no other choice. Now they have seen it's a good thing."
Prominent Los Angeles litigator Mark J. Geragos agreed that the legal profession has shifted its approach under the pandemic's pressures. "At first, nobody embraced how effective Zoom hearings could be," the Geragos & Geragos APC founder said. "But after the initial shock, people got into it. Courthouses are opening back up, but there's no more dangerous place to be than in those crowded, badly-ventilated buildings. People are continuing to settle by Zoom mediation rather than venture back to court. The ADR industry can take a victory lap."
Scott M. Gordon, a veteran of the Los Angeles County Superior Court's family law division, joined the private ADR world in 2019. As a Signature Resolution neutral, he views the industry as a valve that helps relieve pandemic-related pressures on the civil justice system. "We're very, very busy," he said. "We're serving a broader spectrum of cases now, including very complex high-resourced cases. The trial courts are doing a heroic job, but we are able to get a lot of cases resolved in a more timely manner."
Post-pandemic, Gordon added, private ADR will build on the reputation it's earned during the crisis. "In family law, time is an issue and although there's an added expense in doing it with us, we can usually get it done in a day. The middle class folks we're seeing now, folks we'd ordinarily not see, get that. And a lot of them and their lawyers would rather use Zoom than go to the courthouse. That will remain an important part of our work. We will continue to give people geographic flexibility, and allow people to work matters out from their homes, where many feel more comfortable."
At JAMS, Senior Vice President and Chief Legal and Operating Officer Kimberly Taylor said some expressed concern at the beginning of the pandemic over the loss of in-room contact during mediation and arbitration sessions. "There was worry among lawyers and our neutrals as they wondered if computer connections would be as effective. But people are finding it works very well--we gave practice sessions and brought on technical moderators to help people unfamiliar with the ADR process."
Looking to the future, Taylor said, "We have heard that as courts reopen there remain a lot of perceived benefits to private mediation and arbitration. You don't have to find transportation and people are more comfortable in their own settings. We predict those beneficial aspects will grow in importance in many cases, and ADR will remain an effective way to clear court backups."
Last September, JAMS launched a pro bono landlord and tenant mediation program to help mitigate and resolve the rise in Covid-19 housing disputes. A spokeswoman said the program, begun on the East Coast, remains in its early stages and is working to establish and train eviction diversion mediators in California, with future plans to open in Los Angeles and San Francisco.
A spokesman for the state's Judicial Council declined to comment on private ADR services. He noted that many courts "offer effective alternative dispute resolution programs and that in response to the Covid-19 pandemic Governor Newsom has proposed a Pandemic Early Disposition Calendar Program." In addition, the Judicial Council has allocated $25 million to address case delays due to Covid-19, the spokesman said.
Aaron Gothelf, the American Arbitration Association's vice president for the Pacific region, is based in San Francisco. He said that many more first time users are submitting their disputes to arbitration even though the contracts in question have no arbitration clause. "When the courts closed, at first there was some hesitation over which side might benefit by any delay. But when people came to realize it would be longer than at first thought, they also realized they could do it remotely through us."
He added, "Once Covid's over, we believe that there will still be people who like working with us remotely. This presents a unique opportunity to change the ADR industry. By staying with remote sessions, law firms will be able to control arbitration costs by eliminating the costs of travel and hotels. Firms don't enjoy paying those bills. Now they won't have to."
At ADR Services Inc., founder and president Lucie Barron said that in addition to an increased caseload, she's seen a change in the types of disputes her firm is asked to referee. "We're getting more discovery reference cases, because folks who don't want to wait are bringing them to us to get it done. Civil court judges on the bench don't have access to their research attorneys, and these hearings are critical in cases where there's a lot of money involved. Often, once you get discovery, you get a settlement."
Those and other matters will continue to be done privately and remotely, Barron believes. "Our neutrals tell us our settlement rate is just as high as it was in person," she said. "We were moving that way anyhow, but Covid sped up the process." On the downside, she acknowledged, "We have 135 empty conference rooms around the state, and I've got all these leases with no time to do battle with landlords." How that will shake out isn't clear, "but we do know we'll be doing a lot more from our home offices in the future."
At Sheppard, Mullin, Richter & Hampton LLP's Costa Mesa office, managing partner Sean P. O'Connor said a client faced a familiar dilemma: whether to fight in court a family business dispute involving a large real estate holding or to go along with the other side's preference for private mediation. The advent of Covid made ADR look good. "The case is ongoing, but we've made considerable progress using JAMS and Zoom," O'Connor said. "And I've settled four other cases that would have gone through the courts. The process has been productive, and that will continue going forward."
Another advantage to ADR's new virtual capabilities involves a neutral who is now in his 80s. O'Connor called him one of his all-time favorite private judges. "He was getting tired of flying down here from Northern California. Now he doesn't have to. He's delighted to see his career extended by years, he says. That's good for him and good for us."
-- John Roemer