“The Chinese use two brush strokes to write the word ‘crisis’. One brush stroke stands for danger; the other for opportunity. In a crisis be aware of the danger but recognize the opportunity.” John F. Kennedy
Although it may have been subsequently pointed out that the meaning of the brush strokes used by the Chinese for the word crisis are not actually the symbols for danger and opportunity – this does not diminish the value of the advice given by JFK in the above quote, that we should try to recognize the opportunities that may be presented by a crisis.
We all recognize that the COVID-19 crisis has presented enormous challenges for lawyers and their clients.
But it also has created an opportunity to consider doing things differently and perhaps better.
Access to the courts has been closed except for urgent matters.
For those involved in non-urgent litigation matters this presents an opportunity to explore alternative methods of dispute resolution such as mediation or arbitration.
People often interchange or confuse the words mediation and arbitration.
Mediation is a facilitated negotiation, which will only result in the resolution of a dispute if the parties are able to reach an agreement. The mediator facilitates the process but will not impose a resolution if the parties are unable to agree.
Arbitration, on the other hand involves placing the decision making authority in the hands of an arbitrator selected by the parties. There will always be a resolution at the end of arbitration, and the parties are bound by the decision of the arbitrator, subject to whatever rights of appeal that may have been agreed upon in advance.
In addition to moving a case forward in a time when access to the courts is severely restricted, the benefits of using mediation or arbitration include:
- The process can be readily adapted to the use of virtual technology. The parties can determine the procedure to be used between themselves without being strictly bound by the Rules of Civil Procedure or Family Law Rules.
- The parties to the dispute are able to choose the method of dispute resolution that is most appropriate to their case. Family law disputes are often referred to mediation because it is important that the parties maintain a working relationship after their dispute is resolved. Estate disputes are also often resolved by way of mediation. Commercial disputes may be more appropriately referred to arbitration.
- The process can be kept confidential. This may be desirable whether the dispute is family related or business related. With limited exceptions, court proceedings are open to the public.
While most lawyers will be familiar with using mediation or arbitration to resolve the substantive issues in a dispute, it does not have to be an ‘all or nothing’ proposition.
Mediation or arbitration can also be used to resolve interim non urgent issues while access to the courts is unavailable. Examples include resolving interim disclosure issues in a family matter, providing directions in an estate matter or ruling on objections to questions in discovery in a civil litigation matter.
The COVID-19 crisis has forced us all to hit the pause button in our busy practices and in doing so it has created an opportunity for us to think about doing things differently than we have ‘always done them’. This may include approaching litigation cases differently and exploring settlement options that might not have occurred to us when we had relatively ready access to the courts.