Dispute Resolution in a Time of COVID-19 and Beyond: Five Tips for Transforming a Litigated Case to Settlement

Issue November/December 2020 December 2020 By Justin L. Kelsey and Beth L. Aarons
Dispute Resolution Section Review
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From left: Justin L. Kelsey and Beth L. Aarons

Seeking and obtaining the assistance of the courts in resolving disputes is a right afforded to the residents of our commonwealth, but it is not always administered justly, equally or swiftly. Many have had these rights denied or delayed over the years due to discrimination, economic limitations, or merely the backlog of cases funneling through a now heavily overburdened and understaffed court system.

"We must come to see with the distinguished jurist of yesterday that 'justice too long delayed is justice denied.'"

— from the Letter from Birmingham Jail by Martin Luther King Jr.

The COVID-19 crisis has highlighted just how necessary court access is in emergencies, and also how significantly delayed access to the courts can be for non-emergency matters. Unfortunately, it is a very high bar for a case to constitute an emergency, which means clients are bearing the stress and trauma of ongoing litigation for much longer than even the normal lengthy process. Now more than ever is the time to consider alternatives.

Unless there are specific reasons making litigation necessary, such as preserving statutes of limitation, or laying the groundwork for an appeal or a legal issue of first impression, most civil legal disputes can be resolved through a dispute resolution process outside of court. Even if litigation has already been initiated, it can usually be temporarily suspended while the parties try to resolve their issue outside of court without waiving their rights to continue in litigation if a full settlement is not reached.

There are many different options for dispute resolution processes. Some of the most common processes include mediation, the collaborative law process, negotiated settlement, conciliation and arbitration. These processes require varying degrees of direct communication between clients (this list is roughly from most to least client participation), so even highly contentious parties can choose a process that suits their comfort level of communication and participation.

Here are some initial steps you could take to transform a litigated case to a path toward resolution:

1. Do a Process Assessment with Your Client

How is litigation working or not working for your client during COVID? Have hearings and trial dates been postponed? Is there continuing conflict between the parties while waiting in litigation limbo? Maybe it is time for a conversation with the client about other options that could lead to resolution sooner, given the significant court delays everyone is experiencing. See if your client might be open to exploring dispute resolution options. The client would have the option of keeping their litigation placeholder while trying a dispute resolution process.

2. Ask Dispute Resolution Professionals for Information and Process Recommendations

If you’re not sure you know all the ins and outs of the various dispute resolution processes, reach out to a dispute resolution practitioner for guidance. Mediators, collaborative law practitioners, conciliators and arbitrators explain their services every day, and are usually well-versed in the pros, cons and differences between dispute resolution processes since they are often in the position of helping potential clients choose a process. There is really nothing to lose by investigating dispute resolution options to see if any might be a good fit for your client.

3. Create a Template for Requesting Dispute Resolution

For most practice areas, there is some point in your practice where dispute resolution could be a viable option to offer. In family law, the authors’ primary practice, dispute resolution options can be brought in at many different points in the process. If there is a typical time when you might consider introducing dispute resolution options in your practice area, then create a template letter to invite the other party to a dispute resolution process, including a description of the process your client would like to try. If you’re not sure how best to do this, then run your draft template by a dispute resolution professional to help you make a persuasive invitation.

4. Take a Dispute Resolution Training

Even if you never intend to become a mediator, collaborative law practitioner, conciliator or arbitrator, you will be a better advocate when representing clients in these settings if you more fully understand these processes and the training the professionals received. You will also become more skilled at identifying what processes could be a good fit for prospective and existing clients. Additionally, dispute resolution practitioners are more likely to refer representation work to attorneys whom they know have also been trained in these processes and who become “mediation friendly attorneys,” meaning attorneys who respect clients’ right to self-determination and making informed-consent decisions in their legal matter, even if the resolution might be different from an adjudicated result.

5. Don’t Stop, Can’t Stop, Won’t Stop

Dispute resolution processes can be engaged before anything has been filed in court, when nothing is ever filed in court, after cases have been filed in court, before and after pre-trial, on the eve of trial, after trials but before judgment, and even after a judgment is received. It is never too late to seek methods of resolution that offer clients the opportunity to avoid court, to be more in control of their own resolutions, and to be more creative in crafting a resolution more tailored to their specific circumstances than court-adjudicated solutions. Since the opportunities for self-determined resolutions are always there, particularly in a time when litigation may be at a standstill, we encourage you to never stop asking if a dispute resolution process option might be a good fit for your clients.

Justin L. Kelsey, J.D., is the owner of Skylark Law & Mediation PC, a collaborative family law and mediation practice, and Gray Jay Endeavors LLC, a QDRO consulting and forms
provider. Kelsey is a past president of the Massachusetts Collaborative Law Council and the current president of the Massachusetts Council on Family Mediation. Kelsey is on the Dispute Resolution Section Council of the Massachusetts Bar Association and a frequent contributor to trainings at Massachusetts Continuing Legal Education, the MBA, the Boston Bar Association, and Divorce Mediation Training Associates. Learn more about Kelsey at skylarklaw.com.

Beth L. Aarons, J.D., MSW, principal of Aarons Law & Mediation, focuses her law practice on mediation and collaborative law process in family law and estate disputes. She is currently the president of the Massachusetts Collaborative Law Council and a director and certified mediator at the Massachusetts Council on Family Mediation.