One of the more astonishing developments of the Covid-19 crisis, was the abrupt, and complete, shut down of the court system. Overnight the court house doors slammed shut, preventing the filing of new cases, and freezing progress on cases already in the system, including the adjournment of trials already in full swing before a judge.
At DLG a very busy trial schedule suddenly disappeared, leaving clients lives in limbo, sometimes with their assets still frozen by court order, notwithstanding that they had expended considerable sums of money and invested months of time in preparation for their day in court and closure for their martial problems.
Each of our lawyers quickly embarked upon a file review- what immediate steps could we take to resolve each file, without access to the courts? In some cases, for sure, where we needed the coersive power of the court to force recalcitrant litigants to toe the line, not much could be accomplished, but for many files, especially those already poised to go to trial in the near future, financial disclosure was complete, documents had been exchanged and examinations for discover had been performed. For those files, two options came to mind: mediation and arbitration.
In an arbitration, we are essentially hiring a private judge to hear and decide the dispute, with all parties agreeing to abide by the result and to implement it. Arbitrators are typically senior lawyers, or sometimes even retired judges. In such a private court system the parties are free to make their own rules, and to chose their own venue and the methods to be used to adduce evidence, so conducting an arbitration remotely, using video-conferencing is very feasible- and, because we are hiring and paying the judges ourselves, they make themselves available when we want them!
Mediation, although it too involves hiring an external third party to help with the resolution of the dispute, is quite a different process. The hired mediator has no authority to impose a solution, and doesn’t receive and weigh evidence, make findings of fact, or interpret the law, Rather, they are dispute resolution experts trained to facilitate settlement, by shuttling back and forth between the parties and their counsel, trying to discover each parties needs and priorities, offering suggestions, and coaching the parties. Mediation has a remarkable success rate as almost every file submitted to a process of mediation does settle.
Mediation has become the mainstay of our practice while the courts remain closed, as we are able to conduct them remotely, via video-conference. Our preferred method is to have our client (safely distanced ) in our boardroom with us, as we interact via video link with the other side and with the mediator.
In addition to their busy practice as family law litigators, both Rebecca Darnell and Emerald Chhina are certified family mediators, and are frequently chosen to act as mediators in family law disputes.
The closure of the courts is forcing us to re-examine how we can assist clients in resolving their legal disputes, and we are optimistic that we are making progress, as we adapt the tools of mediation and arbitration to operate in the “new normal ” that everyone is talking about