Whoever coined the phrase “justice delayed is justice denied” was certainly not contemplating a global pandemic. And yet, that is precisely what litigants in most state and federal courts are currently facing. In some circuits, even civil bench trials will not begin again until 2023. There is really nothing that the judges or court systems can do to hasten the progress of civil litigation particularly since criminal litigation takes priority. This leaves litigants with the need for speedier options to resolve disputes.
These are appropriate times to consider, or reconsider, two alternative dispute resolution proceedings. The first is arbitration. While arbitration is nothing new, some of the delivery methods for arbitration have been significantly modified. Modern arbitration delivery may be either through the well-known and established American Arbitration Association, or JAMS Endispute, private arbitrations, or even other vehicles limited only by the creativity of the parties. The parties would enter into a binding arbitration agreement which would set the boundaries of the arbitration in terms of selection of the arbitrator, decisions on the locale of the proceedings, the date and time of the proceedings, the rules of engagement, whether the rules of evidence apply, whether discovery will take place, whether motion practice will be permitted, and any number of other considerations which would now be solely within the control of the parties. Once an arbitration agreement is signed, the dispute could be resolved as early as 30 days later or whenever the parties desire the resolution to take place.
For parties who cannot agree to arbitrate and remain mired in a stalled litigation docket, consider asking the court to appoint a Special Master to efficiently move a case forward. A Special Master is an individual who is appointed by the court, upon agreement by the parties, to hear the case, make recommended findings of fact and conclusions of law, thereafter submitting those findings of fact and conclusions of law to the court for consideration and adoption into a final judgment. With a Special Master, the parties have all of the scheduling options that are available through arbitration; the only difference is the decision of a Special Master is not final and binding, it goes to the court for a final consideration and determination. However, that preserves the appellate rights.
In both of these options, parties are able to resolve their dispute in a much more efficient and expeditious manner. This may be the best source of options when it comes to resolving disputes in these global pandemic days.
Stephen A Hilger, of Hilger Hammond, PC in Grand Rapids, Michigan, has been an arbitrator with the American Arbitration Association for over 25 years, he has conducted private arbitrations and has been appointed as a Special Master.