THE FUTURE OF ADR, POST-COVID: PERSONAL MUSINGS FROM A NEUTRAL

By Hon. Larry S. Schachner (Ret.) | November 2020

These past several months have certainly been a challenge, to say the least. Lock downs, face masks, heroic doctors, hospital workers, and first responders, sickness, death, shuttered businesses, and furloughed workers all around us. It has been a long hard road for many. In the world of Alternative Dispute Resolution (ADR), it has been the era of virtual hearings through Zoom.  Since March, like many of us, I have been working from home, conducting Zoom mediations and arbitrations for NAM (National Arbitration and Mediation). In my experience, I have seen virtual mediations gradually increase this past spring and then witnessed a strong uptick in the number of virtual hearings through the summer and fall.

As my teenage children can attest, I am technologically challenged. So, at the onset, my technological aptitude was worrisome. Well, those worries are long gone. As most of us have figured it out, and with a little help from NAM's IT Department, I have learned to share my screens with the other participants in the mediation or arbitration process. Virtual ADR has been a godsend for attorneys, the courts and my fellow mediators. While I look forward to the return of in-person hearings, in my view, Zoom has provided the perfect platform for ADR.  In fact, I believe we will be continuing to use it even after things return to “normal”. Virtual ADR is here to stay, but it will also become a valued supplement to in-person arbitrations and mediations.

Virtual ADR – saving time and money

Attorneys and carrier's representatives have acclimated themselves to virtual ADR.  My colleagues have done the same.  The general consensus – Virtual ADR, for the foreseeable future, will remain an effective way of resolving disputes and hopefully by spring, we will be able to mediate and arbitrate in-person.

Over the past few months, I have presided over arbitrations with witnesses testifying from as near as New York, New Jersey and Florida and as far away as Ghana and Kazakhstan. I have negotiated settlements with insurance adjusters and defense counsel In California, Georgia, Massachusetts and Nebraska. That's a lot of time and money saved for all concerned.

Recently and quite remarkably, I had a plaintiff attorney tell me that through Virtual ADR and virtual court conferences, he was able to cover three counties, conduct a mediation, and was finished by early afternoon. That kind of productivity can be invaluable.

Virtual ADR is easy to manage, a productive saver of time, money and resources, and has now become the new normal.

Backlog in the courts, jury trials a long way off

Needless to say, the pandemic has caused a tremendous backlog in the courts over the past few months. Attorneys I have spoken with have informed me that some judges are even conducting occasional bench trials instead of jury trials when both sides consent. Jury trials are a long way off, as potential jurors will certainly resist appearing for jury duty. As advanced as Zoom is, I don't think virtual jury trials are imminent. Some states have experimented with them, or some type of hybrid system. These experiments have raised other issues regarding the make-up of potential jury pools, and due process concerns.

The logjam of potential jury trials appears to be insurmountable and will take years to get through. This will be made even worse by the court system recently eliminating Certifications for Supreme Court Judges. Many of these Judges were some of the most productive jurists in the court system, and some counties are losing from six to eight judges. This is a budgetary measure, and I predict the cuts will get deeper and make the situation even worse in the short term, and will devastate some counties, as case inventories skyrocket leaving the remaining judges to preside over an unmanageable caseload.

The Solution

The current situation calls for continued and increased use of virtual ADR in the short term, and when permissible, the return of in-person mediations and arbitrations.

ADR can assist the bench and the bar to begin digging out from the overwhelming backlog of cases caused by the pandemic. For the most part, over the past several months, I have seen both sides negotiating in good faith despite everyone's uncertainty as to when a case will be reached for trial.  I believe defense counsel, the insurance companies, and plaintiff attorneys should be commended for the way they have conducted themselves and their willingness to negotiate equitably given the circumstances. I anticipate that this “good faith” negotiation will continue, and I look forward to seeing counsel virtually, in the near future, and when the time is right, in-person, when we are able to sit across the table from one another and negotiate a fair settlement.

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About the author

Hon. Larry S. Shachner (Ret.) is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases throughout the United States. He is a retired Justice of the Supreme Court, Bronx County, and served on the bench for nearly 20 years. In 2020, for the third year in a row, Judge Schachner was voted a Top Ten Neutral by New York Law Journal Best Of Survey. He was also named a National Law Journal Alternative Dispute Resolution Champion, as part of a select group of only 46 nationwide and was rated “Highly Qualified” by the New York State Independent Judicial Election Qualifications Commission.

Meet Hon. Larry S. Schachner (Ret.)