Alternative Dispute Resolution During COVID-19 and Beyond
The cost and inefficiencies of family litigation have only been exacerbated by the ongoing Coronavirus (COVID-19) pandemic. Parties dealing with non-emergency family law matters such as divorces have found their cases brought to a standstill, leading to uncertainty and anxiety. Los Angeles county family courts have backlog tens of thousands of cases deep, and family courts may not resume normal levels of function until 2021.
While frustrations abound, the good news is that there have long existed multiple alternatives to appearing in court, all of which continue to be available while California's current Stay at Home orders are in place. Here, we introduce you to some of these Alternative dispute resolution options and discuss how you can apply them to preserve time, money, and privacy in your ongoing family law matter.
Adjudicatory Alternative dispute resolution Measures
In a recent webinar sponsored by the Beverly Hills Bar Association, retired Los Angeles Superior Court Commissioner Keith M. Clemens discussed several forms of alternative dispute resolution. He subdivided them into three categories: adjudicatory, non-adjudicatory, and hybrid alternatives.
One adjudicatory alternative made possible by the California Rules of Court is the appointment of a privately compensated temporary judge. The private judge is paid for by the parties, rather than by the state of California. There are three main requirements for the use of a private judge. The first is that both parties must agree to use one. The second is that the chosen judge be an active member in good standing with the California Bar. A California licensed attorney is eligible to act as a judge, but in Southern California, most of the private judges are retired members of the bench. The third and final requirement is that the presiding judge of the county in which the parties filed their case (for instance, in the case of Los Angeles County, Judge Riff) authorize the appointment. The advantage of using a private judge is that an order issued by a private judge has the same legal effect as one issued by a sitting judge and, therefore, the parties retain the same rights of appeal and enforcement.
Another adjudicatory alternative is the appointment of a referee, an alternative dispute resolution mechanism made possible under the Califronia Code of Civil Procedure. A referee could be an attorney or retired judicial officer who hears the parties' evidence, makes findings and recommendations, and issues what is called a "statement of decision." Once both parties agree to hire a referee, they file a written copy of said agreement with the court in which their case is pending, which must then be approved by the family law judge assigned to their case. Unlike a private judge, however, the referee does not have the powers of a judge, such as the power to issue subpoenas. And, while subpoenas do not come into play in every family law matter, they can be critical tools for everything from determining the nature and extent of a party's community property, to eliciting testimony from parties and nonparties. Also, the referee's report is not final and binding, and either party may object to it. This means that statements of the decision issued by referees lack the finality of orders made by temporary private judges. Disputes arising from statements of decision are resolved by the judge of the superior court in which the case is pending.
Parties also have the option of stipulating to binding arbitration. Unlike private judges and referees, binding arbitration does not require a judge-type figure at all; it is instead, a matter of contract. As such, the parties must decide on three things: the arbitrator, the scope of the arbitration, and the degree to which an arbitration award is appealable. An arbitration award does not have the same legal power as a court order – and may have to be entered as an order or a judgment before it can be similarly enforced. Therefore, if a party does not like the award and chooses not to adhere to it, it will not automatically have the same legal consequences as an order. An additional caveat to note with this alternative dispute resolution method is that, while it is possible to arbitrate financial and property-related issues, it is less clear whether parties can arbitrate with regard to custody.
Non-Adjudicatory Alternative dispute resolution Measures
There are a number of non-adjudicatory alternative dispute resolution techniques.
Mediation Mediation is the least formal alternative dispute resolution technique and is governed by California Evidence Code. The parties can agree to select a mediator whose job is then to facilitate an agreement between the parties. The third-party neutral mediator listens to what each party has to say and helps each communicate their position to the other until either an agreement is reached or it is clear that agreement is not possible. To encourage candor, the process is confidential, and the mediator is not allowed to disclose any information provided to the mediator by either party without consent. Successful mediations result in settlement agreements, which are then entered as stipulated orders or judgments. Mediation is appealing because its dialogue-based approach is often inherently less adversarial and threatening.
Hybrid Alternative dispute resolution Measures
Parties may opt for a hybrid approach to alternative dispute resolution. There are two hybrid forms of alternative dispute resolution: recommending mediation, and mediation-arbitration. While meditations are confidential, recommending mediations necessitate a waiver of this confidentiality to allow for the neutral of an unsuccessful mediation to make a recommendation to the ultimate decider (such as a civic or private judge or arbitrator or referee). Similarly, in mediation-arbitration, a third-party may act as both a mediator and, in the event the mediation is unsuccessful, an arbitrator. The parties need to agree at the outset whether the confidentiality of the mediation may be waived if they are unable to come to a resolution and need to shift gears to an arbitration. For example, if John and Jill opt for mediation-arbitration to resolve their divorce, they must agree, before they even begin to mediate, whether what they say in the scope of their mediation will remain confidential. If they want it to remain confidential and prove unsuccessful at their mediation, the mediator-turned-arbitrator would then need to ignore what they learned over the course of the mediation, and decide the case only based on the evidence presented to them in the arbitration phase of the alternative dispute resolution.
Concerns Related to Technology and Alternative dispute resolution
In a recent webinar presented by JAMS – an alternative dispute resolution provider, four retired Judges (Hon. Melinda A. Johnson , Hon. Riva Goetz, Hon. Sheila Sonenshine, and Hon. Nancy Wieben Stock) spoke with JAMS manager Ed Cruz about the learning curve.
While all the panelists acknowledged the learning curve inherent in adopting new or unfamiliar forms of technology, many stressed that these challenges are less than they initially anticipated. They reminded viewers that videoconferencing technology has long existed, and has been implemented very successfully to resolve family law disputes.
For those concerned with privacy and security, you aren't alone – 82% of webinar participants indicated similar apprehensions. However, as Mr. Cruz assured webinar viewers, there are many things your attorney or an alternative dispute resolution facilitator such as JAMS can do to ensure the privacy of virtual mediation. For example, if your attorney uses Zoom, they can create a unique ID and password for every session, separate the parties into locked virtual "breakout rooms," and enable the "waiting room" feature to control who is and who is not allowed into the main mediation session. The arbitrator, mediator, referee, or private judge can also disable or restrict the recording and screen-sharing features. According to Mr. Cruz, in the over 1000 virtual mediations hosted by JAMS since Californians began sheltering in place, there have been no instances of security breaches (known as "Zoom bombing") by nonparties to the mediation.
With regard to hearings held virtually by temporary judges, Judge Sonenshine stressed the importance both of advance preparation and a courteous tone. For example, she suggested that each party's experts (such as forensic accountants) meet and confer with one another before the virtual mediation. She also cautioned against submitting briefs that are anything but concise, complete, and respectful, as it can be more difficult to manage heightened emotions or hurt feelings when participants are interacting virtually. Judge Stock observed that the COVID-19 phenomenon might very well change parties' hearts and minds regarding what they want from one another and how they want to go about getting it and that, therefore, it may be opportune to capitalize on that emotional shift by mediating. She also emphasized that emotionally-speaking, virtual mediation is beneficial to her as a temporary judge – it allows her to see witnesses' faces more fully, which allows her to gauge better their responses to the introduction of certain pieces of evidence or particular lines of questioning. She also said that screen-sharing often allowed her a clearer view of the evidence being viewed by a witness.________________________
We have always encouraged our clients to consider alternative dispute resolution, due to its tendency to increase privacy and efficiency while often lowering overall expenses. However, during this challenging time of quarantines and limited judicial function, the intersection of alternative dispute resolution and today's technology has become even more appealing. Alternative dispute resolution decreases the costs of litigation in every sense: in addition to helping us maintain our health through social distancing, the time and expense saved by appearing remotely via third-party platforms like Zoom, Microsoft Teams, and Skype instead of in court lowers costs for attorneys and experts, who are then able to pass those savings along to their clients. JAMS webinar participants seem to appreciate these benefits, with 88% agreeing that, when social distancing comes to an end, it will be more common for at least one party to a mediation to appear by video. Alternative dispute resolution represents a way not only to keep your case moving without the courts, but a way to keep it moving more efficiently (and, therefore, in many cases, more cost-effectively).
For more information about alternative dispute resolution and how it may be effectively used in your case, call us at (310) 948-6461 to schedule a consultation.