July 27, 2020

By Kent Bevan

The civil case has been filed and the trial date is next year, following written discovery and depositions. What effect will COVID-19 or “the virus” have on that trial setting? Jury trials were suspended starting in March 2020 in many courts throughout the country. While they will resume at some point, no one knows the trajectory of this virus or how long it will be around. Will you be able to get a jury when your case comes up for trial? Will witnesses refuse to come to court to testify out of fear of the virus? What happens if critical witnesses get sick during trial?

The good news is that alternative dispute resolution (ADR), specifically mediation, is alive and well. It too has been affected by the virus, but it has successfully morphed. The traditional bare bones concept of mediation is a third party not involved in the case, such as a former judge or lawyer whose practice includes mediation, who helps foster communication between parties to a lawsuit or claim so that the parties have the opportunity to gather at one location, but in separate rooms, to explore and possibly settle their dispute on a voluntary basis. Many courts order mediation before trial in an effort to lessen the “traffic jam” courts face with the burgeoning litigation.

Many parties are now using video conferencing, such as Zoom to conduct mediations. With some enhanced features, Zoom can be set up so as to afford the same privacy and confidentiality required as in a traditional mediation, provide for separate “breakout” rooms for the different parties, and provide necessary security. There are features that allow the mediator to enable or disable various parties when it is necessary to either include or exclude them from certain conversations. One big advantage of Zoom mediation is that the parties can be located anywhere with access to Zoom, saving travel time and costs, and all of the extra costs associated with out of town parties. Zoom allows for encryption of data as a security feature. Though Zoom mediation takes place with the participants in their own separate locations, it has the feel of an in-person mediation when properly conducted thanks to enhanced technology.

Many Dysart Taylor litigators have participated in and resolved cases via remote mediations since March 2020. Though the virus will one day pass, we predict attorneys and their clients will continue to use remote mediations long into the future.

Contact Kent M. Bevan at 816-714-3025 or kbevan@dysarttaylor.com with any questions.