Publications

Our world has forever been changed. We have witnessed an advance in remote technology at an unprecedented pace. Web platforms such as Zoom have supplanted the need to get into a car and drive to a courthouse or a brick-and-mortar facility to conduct proceedings.

The Honorable David B. Saxe (Ret.), discusses the ways that his experience as a judge and a lawyer inform his ability as a neutral; the advantages of alternative dispute resolution versus litigation; and the role of mediation and arbitration during the pandemic and beyond.

The possibility of an eventual arbitration may very well motivate the parties to successfully reach a settlement at the mediation stage. The central advantages of Med-Arb are the certainty of a defined outcome, greater efficiency in terms of time and money, and greater flexibility concerning process and timeline.

Attorneys who have been litigating cases for years are in the best position to judge whether a joint session is worthwhile or not. There is no rule that there must be a joint session at a mediation. A mediator should maintain the flexibility to always work in a way that will best serve the process.

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, I have learned to share my screens with the other participants in the mediation or arbitration process.

Human beings are social creatures and most of us would rather participate in-person if possible. In the post-Covid-19 future, both video and of course in-person hearings will be available. I want to share a few observations about the unique benefits that come with video mediation or as it is often referred to, videoconferencing or Virtual ADR.

In 2020, the court system has faced unprecedented challenges from the pandemic and associated budget cuts. Business disputes, however, continue on – and with would-be litigants facing uncertain waits in the court system for their most pressing issues, Alternative Dispute Resolution (ADR) has taken on new importance.

The reality is that now in most jurisdictions, it is almost impossible for litigants to have their day in court, impaneling a jury is out of question, the processing of routine legal matters has taken a dramatic hit and the backlog of cases awaiting trial on most court calendars has grown exponentially.

Now that the courts have begun to reopen, one might at first believe that the pre-pandemic status of courts dealing with a steady flow of matrimonial cases is being slowly but inexorably restored. However, not only is online mediation still as desirable an alternative as it was during the pandemic’s darkest days, it remains an attractive option specifically in the area of matrimonial law, where disputed issues are often personal and sensitive.

Rhonda Epstein is a longtime proponent of ADR and a seasoned litigator with an extensive background in employment law and commercial matters. She talks about how that experience helps her work as a mediator and arbitrator, especially as COVID-19 wreaks havoc on businesses and the court system alike.