What’s Next for ADR?
by John Miles, CEO
I am incredibly proud of how my executive team anticipated the impact of COVID-19 and implemented strategies that have allowed us to meet the needs of our clients during this crisis. We have hopefully weathered the worst, and now we are preparing to open our offices and get back to normal operations.
Over the past few weeks, I have been asked what will be the long-term impact of this pandemic on alternative dispute resolution (ADR)? Typically, this question is framed in the context of whether virtual mediation will replace in-person mediation. Some believe that virtual mediation is the wave of the future. For my part, I think the industry will quickly return to in-person mediation. During mediation, individuals communicate about personal issues that are often intensely emotional while, at the same time, requiring them to compromise. This process can be difficult, time-consuming, and draining. It requires the assistance of an experienced neutral. By its nature, mediation is one the most intense and personal events many litigants will ever experience. Therefore, mediation has the best chance to succeed when conducted in person by a professional in an inclusive and welcoming environment. While Zoom, and other virtual platforms, have allowed neutrals to assist clients in this time of lockdown, it is no substitute for what occurs in-person.
I have no doubt that Zoom and other virtual platforms will play a role in ADR going forward. For example, it is ideal for smaller disputes that can’t justify the cost associated with in-person ADR or where geography and time dictate that a party must attend an in-person mediation remotely.
A more interesting question is whether ADR will supplant litigation as the preferred method of dispute resolution. I believe it will.
Before COVID-19, parties primarily resolved their civil disputes through traditional litigation. If parties were not able to settle their differences, they would retain attorneys and litigate. ADR was an option, but the object of litigation was trial. Most litigants would agree that our current system is too expensive and time-consuming. However, they believe it is the cost to be paid for closure.
Joe Murphey, one of our Atlanta-based senior neutrals, recently wrote an article about how long it will be before parties can try their cases before a jury. Joe made a compelling argument that it will be many months before judges will order 12 strangers into a small room to decide a case. With courts closed for the foreseeable future and jury trials months away after courts open, traditional litigation cannot deliver closure. ADR provides a pathway to closure that is quicker and less expensive. ADR has been around for many years and has increasingly grown in popularity. However, it was most often the attorney rather than the litigant that decided when and if ADR should be attempted.
I believe that the impending backlog of civil matters will require attorneys to take a fresh look at ADR. I have little doubt that those who embrace ADR will have happier clients and more repeat business.
ABOUT THE AUTHOR
John Miles is the CEO of Miles Mediation & Arbitration. In addition to his executive duties, he mediates high-value and complex matters, on request at a per diem rate. He oversees neutral training and development at Miles.