Virtual ADR Relief Zooming In
Covid-19 has closed businesses, moved school instruction online, delayed surgeries and created suffering and health fears throughout the United States. To say the least, the last two months have been very challenging.
With civil trials suspended, Covid-19 also has significantly disrupted civil litigation. It is unclear how civil jury trials will be handled once the stay in place orders are lifted. How will courts address social distancing concerns to safeguard court personnel, attorneys and litigants? Will courts assemble jurors before widespread testing or vaccines are available? Criminal matters, unlawful detainers and preference cases likely will be prioritized. Meanwhile, the backlog of civil cases is growing. Covid-19 related litigation itself is expected to add significantly to the courts’ already heavy caseload. Further continuances of existing court dates are anticipated. More delays and increased litigation costs will follow.
Remote alternative dispute resolution services can help reduce the backlog and ease the burden on courts and litigants.
For example, special masters streamline discovery and overall case management and address problems before they evolve into unnecessarily expensive and time-consuming disputes. Special masters allow parties to preserve their right to trial, while minimizing litigation risks and delays and maximizing settlement opportunities. Just last year the ABA encouraged the accelerated use of special masters to “aid in the ‘just, speedy and inexpensive’ resolution of cases.” ABA Resolution 100. Special masters can advance these goals largely through focused and strategic teleconferences.
Many mediators, referees, attorneys, carrier representatives and litigants started using virtual mediation for the first time during the shelter in place. The popular Zoom video platform is easy to use and a simple way to navigate these sessions. All participants need is a strong and secure Wi-Fi connection, a computer with a camera, the Zoom app and some basic instruction to gain confidence in the process. The mediator guides participants through virtual rooms and advances settlements through confidential negotiations. A brief overview of the tools used by participants in a Zoom mediation follows; the platform also offers short, helpful online tutorials.
Facetime is another option for mediating simple, two party disputes.
State and federal courts are using the Zoom platform for mediations and judicial hearings. The process works equally well for arbitration hearings. Further, court reporting services are offering free technical training to prepare participants, particularly with the introduction and marking of exhibits.
Clearly, virtual sessions are not the perfect substitute for in person negotiations or hearings. In person meetings allow participants to interact informally, read body language, look each other directly in the eye, express empathy with a pat on the back and seal a settlement with a handshake. High emotion cases, such as wrongful death and medical malpractice cases, may be especially challenging to negotiate remotely. Business, commercial and construction cases may be more suitable for remote resolution.
On the other hand, virtual meetings significantly reduce travel costs and time commitments and make it easier to schedule meetings. Participants can simultaneously see each other’s reactions onscreen. As technological advances continue to improve the speed and quality of videoconferences and people become more comfortable with the technology, virtual sessions will continue to grow in popularity. Zoom recently reported 300 million daily users. All businesses are learning to thrive under these new and unique conditions, and this is a great time to master this phenomenal tool.
An Overview of a Zoom Mediation for Participants
- Participate from somewhere comfortable, free from distractions and with a strong, stable and secure internet connection. Do not use public access Wi-Fi, such as those available in public spaces and businesses. Make sure to have light on your face; your primary light source should be behind your camera. Use a headset if you have one.
- From your computer, tap the Zoom link in the email notice. You will be placed in a Waiting Room. The names of waiting participants are visible, but no one in the waiting room can be seen or heard by anyone else in the conference. The Waiting Room is a security feature that prevents uninvited guests from entering the mediation.
- From the Waiting Room, the mediator will move participants into a virtual Main Conference Room. Everyone in the Main Room can see and hear everyone else in the room. Joint sessions are conducted in the Main Conference Room.
- The mediator will assign participants to Breakout Rooms. Here, you can only hear and see other participants in your same room. The mediator announces her arrival into a Breakout Room by broadcasting a message to all rooms (watch for a blue banner at the top of the screen for mediator messages) or by sending a private cell phone text. The mediator can enter the Breakout Room and move participants from one room to another. Also, you may summon the mediator to your room by pushing the Ask For Help button at the bottom of your screen or simply sending a text to the mediator’s mobile phone.
- A screen share button at the bottom of your screen allows you to share documents on your computer screen only with others in your room. You also may use a white board and have chats with others in your room.
- You can mute your audio or stop your video at any time through buttons on the tool bar at the bottom of the screen.
- When the mediator broadcasts that the parties will be returned to the Main Conference for a joint session, a one to two minute count down will appear on all screens.
- Participants can use screen share to edit and finalize a Settlement Agreement. All parties may sign the agreement via DocuSign or Adobe Sign or by personally signing and then scanning/ photographing and emailing the executed document to the group.
- Zoom has responded to recent security concerns primarily with upgrades in the host controls. For more information on Zoom new and old security systems, see https://zoom.us/docs/doc/Exec-Letter.pdf.
Special Masters streamline the dispute resolution process, minimizing the costs, delays and risks of complex cases such as construction defects
The fire started just above the first floor ceiling. Workers renovating the seven-story historic hotel fled the smoke-filled stairway, stumbling and falling on the way. Aerosol paint cans exploded from the heat, and the fire grew to three alarms. Firefighters blasted the 100-year-old building with water and successfully extinguished the flames. Unfortunately, the hotel suffered extensive damage from the fire, smoke and suppression efforts. Rain later doused the interiors through the open roof and windows. Mold grew. Lead paint flaked and peeled off the walls.
The hotel owners performed millions in repairs. They resolved an insurance claim with their carrier and then sued the renovation contractor for remaining fire and breach of contract damages. The general contractor in turn sued the subcontractors suspected of starting the fire and their insurance carriers. Liability was hotly contested. The general placed a lien against the building, served stop notices and sued the hotel group for unpaid contract balances; the subcontractors also sued for sums due. Five actions for personal injuries and subrogation followed. Two years after the initial filing, significant investigation and litigation costs had been incurred. Counsel disagreed on how to address “threshold” legal and factual issues. The parties anticipated taking roughly 70 percipient depositions and filing motions to bifurcate and/or motions for summary adjudication/judgment. The Superior Court consolidated the eight cases, set, and then vacated, a trial date.
The Superior Court subsequently appointed a Special Master. Shortly thereafter, the parties deposited more than 250,000 pages of documents, responded to initial insurance and scope of work interrogatories and deposed twelve key percipient witnesses. Within seven months, and before the trial-setting conference, the Special Master focused the parties on the key issues and successfully brokered a global settlement of the consolidated litigation and a related federal insurance coverage action.
Why a Special Master?
Complex cases involve multiple parties, difficult and time-consuming issues, large volumes of discovery, coordination with other pending actions or extensive post-judgment supervision. They require “exceptional judicial management to avoid placing unnecessary burdens on the court or litigants … .” (Cal. Rules of Court, rule 3.400(a)(b).) Special Masters support the court with the efficient and effective management and resolution of these cases. Special Masters streamline discovery and litigation, reduce delays often associated with complex cases, negotiate settlements and ultimately save the parties and court significant time and expense. The parties may stipulate to a Special Master or the court may appoint the Special Master on its own motion. (Code Civ. Proc., §§ 187, 638, 639.)
Multiparty construction defect cases and Judicial Council Coordination Proceedings provide additional examples of the effective use of Special Masters to successfully resolve complex cases.
Construction defect cases
Construction defect cases typically involve numerous parties, attorneys, insurance companies and experts. Each player has its own goals. The property owner wants maximum funds to repair defects and cover losses. The builder disputes plaintiff ’s repair scope and cost estimates, and seeks to pass plaintiff ’s claims, and often the builder’s legal fees, onto subcontractors. The subcontractors concentrate on minimizing damages and shifting responsibility. The design professionals distinguish between construction errors and design issues. Attorneys challenge pleadings, decipher contracts, pursue claims and assert defenses. Insurers highlight policy language to define covered losses and involve other carriers to share the risk. Experts bring technical insight to all aspects of the discussions. Discovery and litigation costs soar.
In the 1980s, California experienced a population growth that more than doubled the national rate. The resulting high demand for housing ignited the construction industry and eventually caused a dramatic increase in construction defect litigation. With heavy caseloads, the Superior Courts simply could not invest sufficient time to conduct settlement negotiations to resolve these multiparty complex cases. The courts became backlogged. After studying the federal courts’ successful use of Special Masters, the San Francisco and San Mateo Superior Courts worked with local lawyers to create Alternative Dispute Resolution programs to address complex construction defect cases. They drafted a pre-trial order that included the appointment of Special Master to manage discovery under the Court’s supervision. John Griffiths was the first Special Master in California to successfully implement the order. He pioneered a process that streamlined the production of necessary information, narrowed the issues and engaged the parties in meaningful settlement discussions in multiparty construction cases. The process significantly shortened trial preparations at significant cost and time savings to the participants.
The legislature ultimately deemed constructive defect cases involving many parties or structures as provisionally complex. (Cal. Rules of Court, rule 3.400(c)(2).)
The process for resolving complex construction defect cases has evolved over the years. The use of Special Masters continues to be an effective and efficient means of organizing, managing and resolving complex construction defect cases.
As an example, in a recent case a large public university alleged more than $50 million in construction and design defects and economic loss at seven apartment buildings on the university campus. Three dozen defense parties included the builder, subcontractors, sub-subcontractors, product manufacturers and design professionals. The case within the case involved battles between the primary carriers, the excess carriers and the additional insurers. The builder’s prime insurer filed a complaint in intervention and a federal coverage action.
With multiple attorneys and experts representing each party, joint and defense only expert meetings involved well over a hundred participants. It was standing room only for Case Management Conferences. The judge cautioned that the courthouse was physically too small to host the trial. However, offsite trial locations raised security issues and complications for the judge who had other cases that had to be conducted at the court during any construction trial. In short, the case was a logistical nightmare.
The Special Master worked with the Superior Court and all parties to streamline case management, resolve discovery disputes and address disagreements that arose during ongoing dormitory repairs and student move-outs. All parties’ input was solicited for pre-trial orders. Focused and structured communications provided real-time updates. Without service of formal individual discovery requests, the parties successfully produced voluminous project documents, shared document expenses, conducted site inspections and destructive testing, arranged biweekly site visits, exchanged confidential expert reports, generated a discoverable statement of claims, attended substantive expert meetings, disclosed and produced percipient and expert witnesses, and coordinated approximately 200 days of deposition testimony. The Special Master also partnered with the mediator to negotiate scores of settlements, winnowing the number of parties and issues until the case globally settled before trial.
Judicial council coordination proceedings and multi-district litigation
The California Judicial Council Coordination Proceeding (JCCP) Courts are recognized for their ability to manage national litigations in cooperation with other coordinated proceedings. Federal Multi-district Litigations (MDLs), which are the federal equivalent to the JCCP, often overlap with coordinated proceedings in various state courts, including California. There are natural tensions between separate and independent jurisdictions, and Special Masters have successfully served to ease those tensions. More recent MDL/JCCP cases have served as cooperation models on issues that have been historically difficult to resolve, such as the conduct of liability discovery, document production, the sharing of work product, the use of a centralized case specific database, the coordination between counsel across many jurisdictions, trial setting, and consensual resolution.
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In larger multi-venue complex cases, that perhaps include both state and federal jurisdictions outside of California, the use of Special Masters to foster communication between the parties and the JCCP court is now generally accepted. The Special Master assignments vary across litigations but have included all of the issues identified above. Currently, the federal courts are using Special Masters to oversee issues such as discovery, coordination with state courts, the selection of bellwethers, global settlement negotiations , etc.
In the early 2000s, in California Special Masters were granted JCCP assignments for aggregate settlement allocations. (Code Civ. Proc., § 638.) Because of the growing recognition of the success of JCCPs to resolve national cases on the merits, and the need for Special Masters to assist in that resolution, the role of Special Masters has increased.
In one recent JCCP, plaintiffs sought compensation for personal injuries and damages stemming from a prescription drug that was associated with a serious medical condition. The proceedings involved well over 5,000 plaintiffs and 18 different manufacturing defendants, with cases located in 16 different state and federal venues across the country and three coordinating jurisdictions. The role of the court-appointed Special Masters, in cooperation with coordinating courts and the parties, led to the successful resolution of this complex case.
The Special Master created protocols and set a compensatory structure, along with case-specific criteria that was consensually adopted by the parties and the coordinating courts. These efforts resulted in both closure for the manufacturing defendants and participation for over 99 percent of the plaintiffs. Special Masters working with the JCCP court are an integral part in resolving complex MDLs. There are certain limitations on a JCCP court and its ability to assign specific cases to a specific private mediator. However, in coordination with the federal MDL, Special Masters have had an increased role in the California system because of the complex state federal issues that are addressed in MDLs.
A clear and purposeful approach
Successful case management of complex litigation by Special Masters requires a clear and purposeful approach to effectively and efficiently streamline the entire dispute resolution.
As a first step, the Special Master convenes all counsel and leverages their significant talent and experience to establish common objectives. The group uses straightforward case goals to generate a clear and cost-efficient resolution strategy. The parties participate in setting realistic deadlines to bring the case at issue, conduct discovery, explore potential motions and recommend a trial date. At the same time, the Special Master identifies opportunities for meaningful settlement discussions and calendars productive mediations and settlement conferences.Close >