By James Alexander and Wendy Potts
Michigan is experiencing a spike in coronavirus cases right now. This has negatively impacted the ability of courts to reopen. The civil case backlog will continue to grow. Since jury trials of incarcerated criminal defendants will receive priority once the courts reopen it is imperative that counsel and clients explore alternatives to litigation.
Litigation during the pandemic has been fraught with uncertainties. While a scheduling order may contain a trial date (which may be in 2022 or even 2023), no court can provide an exact date. Discovery can be negatively affected if a witness, counsel or even a court reporter were infected by, or merely exposed to the virus. Travel has been severely impacted. In addition, many people began working remotely and had to share internet service with others in their household, which often led to bandwidth issues that caused frozen screens 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 has recently begun to adopt and follow many federal court discovery concepts, discovery disputes continue to occur, which can increase costs and introduce delays. Earlier consideration of the benefits of alternative dispute resolution processes can benefit counsel and their clients.
The benefits of early (or even pre-litigation) mediation are readily apparent. Costs and delays can be diminished. In an ongoing business relationship, the parties, who can develop their own mutually acceptable resolution, can continue their relationship. This may allow the parties to resolve their dispute before positions harden and resolution becomes that much more difficult.
Early prelitigation mediation is a concept that drafters might consider including in business agreements, including LLC agreements. A clausemight contain some of the following:
1. The types of disputes that can be mediated
2. The timing of the mediation (within X days of submission) and timing to complete (within X days of appointment of the mediator)
3. The preselected mediation provider
4. Specific expertise and/or qualifications of the mediator
5. The location of the mediation
6. Discovery limits
7. A provision that those in attendance must have full decision-making authority
Early mediation requires the parties to have an understanding of their respective positions. Counsel must give their clients an honest appraisal of the strengths and weaknesses of their positions. Counsel and their clients must understand the end result they are seeking (e.g., monetary damages, limits on competition, continuing production). They also need to maintain what we call "The Godfather ethic": It's strictly business; it's not personal.
An additional benefit of early mediation is a narrowing of the issues. Even if the case itself can't be resolved, this is an excellent opportunity to resolve the smaller or compenent issues that constitute the dispute. This can lead 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 which will hear the dispute. The mediator should also understand how jurors might view the case, in order to help the parties realistically assess the risks of litigation. Additionally, the mediator should be someone with a reputation for fairly evaluating all parties' positions, someone who is not afraid to be brutally honest.
In these unique times, it is essential that neutral mediators, counsel and clients work together to resolve disputes more efficiently and expeditiously.
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James M. Alexander, a retired Oakland County Circuit Court judge, serves as an arbitrator, mediator and special master/referee at JAMS. He can be reached at jalexander@jamsadr.com
Wendy Potts, a retired Oakland County Circuit Court judge, serves as an arbitrator and mediator at JAMS. She can be reached at wpotts@jamsadr.com.
