David A. Hirsch, Esquire ©
As many of you may know, Courts throughout the Commonwealth have delayed trials and hearings in most matters other than narrowly set out emergencies such as protective orders, arraignments, bond motions, and hearings involving inmates. Matters that were scheduled during the suspension of normal operations will be re-scheduled once public safety restrictions are lifted. This means matters with previously scheduled hearings will be delayed. In turn, that will delay hearings on newly filed matters.
For those of you who have time-sensitive matters, or those who wish for faster resolution of disputes, alternatives are available. One such alternative is mediation. Mediation is a voluntary, non-binding process in which a qualified mediator assists the parties in trying to come to an agreed resolution of their dispute. Mediation can be highly effective when parties are motivated to resolve their cases. Mediation providers are implementing procedures to enable mediations to proceed through remote tools.
Another dispute resolution method is arbitration. Arbitration is more formal and structured than mediation, but it is less formal than court. Two unique aspects of arbitrations are that they are private, and that the decisions are legally binding. One prominent provider is the American Arbitration Association (“AAA”). I have been an AAA arbitrator for thirty (30) years.
Even prior to the current global health crisis, the AAA has been a leader in facilitating remote and on-line filing and proceedings. I have conducted hearings in which attorneys, parties, and witnesses all participated through video teleconferencing. Thus, AAA administrators and arbitrators are experienced in conducting proceedings in a remote fashion while maintaining as much as possible the experience of being physically present. Here is a link to the AAA statement regarding proceedings during the current health crisis:
https://go.adr.org/covid19.html?_ga=2.156209083.1686552868.1585158648-1902432935.1585158648
Even as our firm’s own physical office has been reduced to a skeleton team, we are working remotely and my work on pending AAA cases has continued uninterrupted, just as my work on other matters (other than court hearings) has continued uninterrupted. Thus, if you have a matter that needs or warrants a faster resolution, mediation or arbitration may well be worth considering as an alternative to court.
One concern readers may have is the ability to use arbitration if you do not have an arbitration provision in your contract. The AAA has addressed that concern. The Parties can prepare their own agreement to submit their dispute to the AAA. Here is a link to the AAA Commercial Rules that provide such an example at page 8:
https://www.adr.org/sites/default/files/CommercialRules_Web.pdf
The good news is that Parties can agree to move a dispute to arbitration even if your case is presently pending but stalled in court.
If you do not have an arbitration clause but are interested in filing or moving your matter to arbitration, it would be wise to have an attorney experienced with arbitration draft your submission clause. The attorney can include in the submission clause provisions regarding exchange of information and other procedural aspects that typically increase costs in court, but if properly addressed, can be eliminated or greatly reduced in arbitration.
The bottom line is that even with much of social activity and business activity suspended during the current global health crisis, your ability to resolve disputes and move forward does not have to be suspended by this crisis. Mediation and Arbitration are two excellent alternative dispute resolution processes to expeditiously resolve disputes and permit the parties to move forward.
[** Title with apologies to Gabriel Garcia Marquez, Colombian Nobel prize winning author of “Love in the Time of Cholera,”]
The Myerson Law Group, P.C. has several professionals experienced in representing businesses and individuals in mediation, arbitration, and in collaborative dispute resolution. Additionally, David A. Hirsch, Esquire can serve as an arbitrator. Elanna Weinstein, Esquire is a trained family law mediator and Paralegal, Kimberly LaFave, has a professional certificate in family mediation. Although access to our physical office is temporarily restricted during the current global health crisis, we have implemented numerous methods for uninterrupted, remote service of our clients.