The COVID-19 pandemic has wrought havoc on our litigation timetables and trial dates. Litigators are stymied in their efforts to move cases forward. Parties are frustrated with the inertia. With court closures, the time invested to build out the necessary infrastructure for conducting virtual hearings and the backlog that will haunt us for many months or even years to come, what can we do?
The obvious answer is to settle cases either through direct negotiations or mediation. But some cases are resistant to settlement or are not yet ripe for settlement. Perhaps the parties need discovery and can’t agree on a discovery plan, or perhaps one party is shirking dates for examinations. Without the hammer of a court order, it may be difficult to cut through the static. Another option is to enter into a post-dispute Arbitration Agreement to refer the dispute to a jointly selected arbitrator for a full substantive determination. While in many cases counsel will mutually agree to arbitration, there are some cases that need to proceed before the courts, either for precedential value or to bind third parties, or for other reasons. For these cases, there is another option that bears consideration: Case Management Arbitration.
Case Management Arbitration is a process agreed to between the parties to refer interlocutory, procedural issues to an Arbitrator for determination, while maintaining an action within the public court system for the substantive decision on the merits. While Case Management Arbitration has been offered for some time, it has become increasingly appealing in recent times due to the backlog and court closures. Under Case Management Arbitration, parties can move their cases along swiftly and efficiently without having to wait for deferred court dates (and pay more in legal fees when their lawyers need to re-ramp on the issues months later). It is particularly useful for cases involving time sensitivity but is also a smart choice where parties need to move the action along to productions and discoveries in order to optimize settlement opportunities.