The COVID-19 pandemic has had a massive impact on all areas of society, including aspects of litigation that traditionally involve meeting with other parties, such as trial, hearings, and mediation. Faced with this unprecedented disruption, attorneys must prepare themselves and their clients for inevitable changes in mediation practices. This includes consideration of a number of factors, such as: (1) logistics of conducting remote mediation; (2) coordinating with neutrals and opposing counsel to reschedule mediation; (3) modifying existing mediation deadlines with the court; (4) surveying the new landscape for tactical advantages; and (5) planning for uncertainty.
In response to this health crisis, there are now severe restrictions on travel and gatherings that make traditional, in-person mediation impossible. As of this writing, at least 294 million people in at least 37 states, 74 counties, and 14 cities have been ordered to stay home. At least 37 Texas counties currently have shelter-in-place or stay at home orders, including Dallas, Harris, Bexar, and Travis Counties. Gov. Greg Abbott issued Executive Order GA-14 on March 31, 2020, which orders all people in Texas to minimize social gatherings and in-person contact. International travel is de facto prohibited. Many workplaces have travel restrictions on their employees, especially in cases involving air travel. Individuals may also simply not be willing to travel or gather to attend in-person mediation. JAMS, for example, moved its neutrals and staff to a remote-work structure. Thus, the most likely accommodation is conducting remote mediation, where the parties are not required to attend in person.