James Alexander
and Wendy Potts
Michigan is experiencing some of the highest spikes in new coronavirus cases. This has negatively impacted the ability of courts to reopen. The civil case backlog will continue to grow. Since trials of incarcerated criminal defendants will receive priority once the Courts reopen for Jury Trials, it becomes imperative that counsel and clients work towards alternatives to litigation.
Litigation during a pandemic is fraught with new uncertainties. While a Scheduling Order may contain a trial date (now likely to be in 2022 or 2023), no court can give a date certain. Discovery could be negatively affected should a witness, counsel, or, even, a court reporter, be infected, or just exposed, to the virus. Travel has been severely impacted. There can be numerous issues just in dealing with the Iinternet and dropped calls.
One way to alleviate the concerns about pandemic affected litigation is to engage in early mediation. While this concept sounds unremarkable, it requires a rethinking of the mindset of clients, litigation and drafting counsel.
As litigators know all too well, litigation in the 21st century has become a discovery battle. While Michigan recently began to adopt and follow much of the Federal Court Discovery concepts, discovery disputes continue to increase costs and delays. Earlier consideration of the benefits of ADR processes benefit counsel and clients.
These benefits of early (or even pre-litigation) mediation are readily apparent. Costs and delay are diminished. In an ongoing business relationship, the parties, who can develop their own mutually acceptable resolution, can continue their relationship. This also allows the matter to be resolved before positions harden and resolution becomes that much harder.
Early prelitigation mediation is a concept that drafters might consider including in business agreements, including LLC agreements. The clauses could contain some of the following:
1. The types of disputes that would go to mediation.
2. Timing of the mediation (within X days of submission) and timing to complete (within X days of appointment of the mediator)
3. Name of the mediation tribunal (JAMS)
4. Specific qualifications of the mediator (a retired jurist; an accountant; someone skilled in the business)
5. Location of the hearing
6. Limits on Discovery
7. A provision that those in attendance must be final decision makers (those people who can make a decision without having to consult with others)
Early mediation requires the parties to have an understanding of their respective positions. Counsel needs to give the client an honest appraisal of the strengths and weaknesses of their positions. Counsel and client need to understand the end result they are seeking (money damages; limits on competition; continuing production; etc). They also need to maintain what we call the “Godfather Ethic” ... it’s strictly business.
An additional benefit of early mediation is a narrowing of the issues. Even if resolution of the total case isn’t accomplished, this is an excellent opportunity to resolve many of the “minor” issues so that focus can be maintained on the real issue(s). This leads to a quicker, and less expensive, resolution.
In order for there to be an effective early mediation, it is imperative that the parties pick a skilled neutral mediator. These skills require more than just an understanding of the mediation process, but also an understanding of the court system that will hear the dispute. The mediator should also have an understanding of the jurists who might hear the matter in order to help the parties weigh the possibilities in litigation. Additionally, the mediator should be someone with a reputation of honestly evaluating the parties respective positions; and not be afraid to give that honest assessment in order to help the parties evaluate their positions.
In these unique times it is essential that clients, counsel and neutral mediators understand the new realities and work together to resolve disputes earlier; efficiently and expeditiously.
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James Alexander and Wendy Potts are both retired judges of the Oakland County Circuit Court and are mediators with the Judicial Arbitration and Mediation Services (JAMS) office in Detroit.
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