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.
Technological advances make remote mediation easier than ever. Anyone with a smartphone or webcam and internet access can use applications such as Zoom, FaceTime, and Skype for such purposes. Attorneys should communicate with proposed mediators and the parties to evaluate their familiarity with the various videoconferencing or teleconferencing options. Video applications may be challenging for those who are unfamiliar with the technology, and these applications are subject to glitches, such as lagging voices or distorted image quality. But in a time of crisis when in‑person mediation is impossible, video conferencing may be the most viable alternative to postponing mediation entirely.
Whether parties decide to mediate remotely or postpone in-person mediation until after the crisis subsides, they will need to coordinate with each other and the mediators to alter existing plans. Remote mediation may open up new dates that were previously unavailable due to scheduling conflicts and will reduce costs associated with travel and in-person attendance. When the parties can meet from the comfort of their own living room, their schedules can be much more flexible. Those who prefer a later date for an in-person mediation should recognize there is no guarantee travel and gathering restrictions will be lifted by the parties’ new date. Thus, parties should be realistic and conservative with setting new dates for mediations to avoid the need for multiple reschedulings.
Parties also need to be proactive in addressing mediation deadlines with courts. The parties must evaluate whether they will be able to meet their current deadlines and, if not, coordinate to move the court to extend the deadlines and amend scheduling orders. The Texas Supreme Court has the authority to issue orders extending deadlines in disaster situations, under Texas Government Code § 22.0035. To date, the court has issued eight emergency orders related to COVID-19. The First Emergency Order states all courts in Texas may modify or suspend deadlines and procedures for 30 days after the governor’s state of disaster has been lifted and allow or require remote attendance at any hearing, deposition, or other proceeding.(1) The First Emergency Order expires May 8, 2020, unless extended. Both Bexar and Collin counties have blanket orders extending certain deadlines, including deadlines in existing cases. Attorneys should search for rulings, orders, or guidance issued by specific courts, counties, and states that place mediations on hold or affect deadlines. Given the extenuating circumstances, a court would be quite likely to grant reasonable requests for extensions and modifications of scheduling orders.
Once a remote or live mediation is set, attorneys should consider the potentially dramatic change in incentives and leverage positions caused by the COVID-19 restrictions. For instance, with numerous courts canceling trials and hearings for 30 days or longer, there is sure to be massive docket congestion for months. This may cause litigation to be less of a threat and change the leverage positions accordingly. Further, a client may have a greater need for immediate money, and therefore be more open to accepting a different amount if it means expeditious resolution of the dispute. The economic impacts of COVID-19 may mean a defendant will be insolvent or less able to satisfy a judgment months from now at the conclusion of litigation, so mediated resolution offers certainty and some amount of recovery. These sorts of strategic decisions will be intensely fact specific and will require attorneys to consider the micro- and macro-effects of COVID-19 to advise their clients appropriately.
Finally, while it is important for attorneys to control the factors they can control, it is equally important to plan for yet unknown contingencies. Travel restrictions may continue. Shelter-in-place orders may become stricter and more widespread. With predictions that a vaccine may not be available for a year or longer, attorneys and parties may be reluctant to participate in face‑to‑face meetings for the foreseeable future. Attorneys can serve their clients’ interests effectively by implementing proactive, flexible protocols and maintaining open, transparent communication with the court, mediators, opposing counsel, and ultimately, their clients. It is best to have needed conversations early in the process and work toward consensus on alternative mediation plans. After all, agreeing on a protocol for mediation is the first step in reaching agreement to resolve the case and if the parties cannot agree on that, then it is unlikely they will reach resolution at mediation.
Dominic L. Cruciani is an associate attorney with Bell Nunnally & Martin in Dallas. He may be reached at firstname.lastname@example.org.
Perrin B. Fourmy is a senior associate attorney with Bell Nunnally & Martin in Dallas. He may be reached at email@example.com.
1. First Emergency Order Regarding the COVID-19 State of Disaster, No. 20-007, 2020 WL 1239711 (Tex. March 13, 2020).