COVID-19: Encouraging Remote Mediation as an Alternative to Litigation
Remote mediation ensures that disputes can still be resolved despite fewer court sittings.

 

In response to the government's emergency measures to help minimise the spread of COVID-19, the Courts Service recently announced a reduction in the number of court sittings by adjourning non-urgent applications. 

Coronavirus Impact on Court Proceedings

As a result of the reduction in cases being heard, parties involved in on-going litigation will face delays in the progression or determination of their disputes. This backlog could potentially increase if commercial pressures arising from the pandemic and the recent government restrictions give rise to disputes between businesses that ultimately become contentious.

The Irish Courts Service has introduced measures, effective until the end of the Easter Vacation (20 April 2020), that have resulted in the adjournment of all matters, unless the case is deemed to be of particular urgency. All cases have been adjourned in the High Court except for urgent applications in relation to six types of business: bail, extradition matters, habeas corpus, wardship, injunctions and urgent applications for judicial review. Only applications that are considered urgent, such as examinership or winding-up petitions, will be listed for hearing. In the Circuit Court and District Court, urgent matters include certain aspects in cases relating to criminal, family and childcare law.

A case that is not defined as urgent can be treated as urgent if a good case can be made. Where a party does not consent to adjournment, that party must demonstrate particular urgency by writing to the relevant Registrar setting out their reasons for the urgency of the matter.

As we outlined in our previous article here, in response to the current COVID-19 related circumstances the Irish courts have announced a pilot scheme whereby remote hearing of court cases will be facilitated in the new term 'where they are suitable and where they can be conducted in a manner which is fair and where the parties and their representatives can comply with all Government guidance and direction for the time being in force'. 

Given the successful completion of the "systems trial" of the remote hearing platform last week, the new court term should see remote hearings taking place at first in the appellate courts, with a gradual roll-out to other jurisdictions to follow. 

The UK courts have already introduced measures to facilitate the electronic filing of notice of appointment of administrators as well as virtual hearings for certain civil disputes. The recently enacted Corona Virus Act 2020 in the UK provides for the live broadcasting of hearings online, ensuring continuity of the administration of justice in public.

Time to Embrace Technology and Consider Remote Mediation? 

Alternative forms of dispute resolution should be considered in light of the current difficulties in accessing the courts. The restrictions introduced as a result of the COVID-19 pandemic have the potential to make the performance of contractual obligations difficult or in some circumstances, impossible. In such extraordinary circumstances, contracting parties should try to preserve healthy business relationships notwithstanding the inability of one or more parties to perform its obligations.  Nonetheless disputes arise and alternative forms of dispute resolution such as mediation could provide a cost effective and efficient solution.

Mediation is a popular form of alternative dispute resolution, not least because it results in a settlement without the increased costs and time delays associated with litigation. With court access restricted, remote mediation should be considered by parties contemplating litigation. The exchange of mediation documents, such as the mediation agreement and case statements, already occurs by e-mail in most cases.  The only change to the process that remote mediation brings is that the negotiation itself takes place remotely with each party participating through telephone or video-conferencing platforms. The mediator can continue to work as an intermediary between each of the parties and have effective engagement with other parties by creating virtual meeting rooms. Each of the parties can speak privately as they would usually do in person. The mediator can join the meeting rooms to speak privately to the individual parties or create joint meeting rooms where all parties speak directly to one another. 

Confidentiality is vital in any form of mediation particularly remote mediation. Parties must be reminded that mediation should not be overheard or interrupted by anyone who is not a party to the mediation. 

In the current climate, remote mediation provides a convenient space for parties to resolve disputes in an efficient and safe manner.

How William Fry can help

Continuity of business can be achieved despite ever-changing circumstances and practical solutions can be offered to those whose business relationships are in difficulty. Limited access to the courts service should not mean limited access to effective dispute resolution. 

For more information on how we can help you explore mediation options, please contact a member of our Litigation & Dispute Resolution team or your usual contact at William Fry.

 

Contributed by Treasa Kelly