The Future of Litigation

This year I am serving as the chair of the ADR section of the Contra Costa County Bar Association.  This year I’m also serving as the co-chair of the ADR section of the Alameda County Bar Association.  This service places me in contact with lots of different people from all walks of life.

I recently had occasion to communicate with a recently retired judge who served for many years on the bench of one of the San Francisco Bay Area counties.  This judge has great insight into court restrictions caused by the COVID-19 situation.  He indicated that some attorneys expect that the court system will resume normal operations some time in the near future “when the COVID threat has passed.”  But that’s clearly not the case.  Because the courts have shut down for several months, a large number of pending criminal matters are waiting to be tried.  The defendants in many of these cases have not agreed to “waive time” which means these cases go straight to the top of the list once jury trial courtroom assignments can be made.  There are also apparently other criminal matters that have a high priority on the court’s docket and will almost certainly receive preference over civil matters.  This means that for perhaps two years – and maybe longer – there may be few, if any, civil courtrooms available for jury trials.

Doing the math isn’t hard.  Over the past several years our courts have been doing an admirable job of handling burgeoning calendars with limited resources.  But it’s clear that the courts have been just barely keeping up.  But all of that has changed now.  We have a three or four month backlog of criminal cases that will need to be immediately addressed once jury trials resume.  Plus, jury assembly and deliberation rooms aren’t set up for “social distancing.”  If jurors are seated in every third or fourth chair in juror assembly rooms, then the number of available jurors will be cut by something like half to two thirds.  Moreover, the jurors will need to have someplace to deliberate during trials where they can maintain “social distancing.”  It’s therefore entirely possible that instead of requiring one courtroom for each jury trial a total of two courtrooms may instead be needed so that a trial can be conducted in one courtroom and the jurors can be provided with a second courtroom they can use for deliberations.  Use of available courtrooms this way would mean that the courts are operating at something like two-thirds of their capacity so that instead of catching up on the backlog the system would just continue falling further and further behind.  Since criminal cases with no time waived have such a high priority on the court’s calendar, general civil jury trials (and possibly bench trials) may be put over for years. 

It’s not a pleasant prospect for anyone.  Court resources are already overloaded – and parties in litigation will now be presented with the prospect of substantial delays by a system already known for being slow.

In this context the value of Zoom ADR can’t be overstated.  Mediation has been a valuable way of resolving disputes for decades.  But now its appeal is even greater.  Instead of waiting for years (and years) for a courtroom, parties can take control of their dispute by exploring voluntary settlement through mediation.

With current COVID health concerns and social distancing requirements, in-person mediations remain difficult (or impossible).  The alternative is clearly mediation via Zoom (or by similar online platforms).

Let’s face it – the prospect of online mediation just doesn’t sound good.  It’s like crossing a video game with a lawsuit.  Doesn’t inspire confidence.  Seems like a bad idea all around.  Frankly, some attorneys just aren’t ready to go there.  Period.

The reality is actually quite different.  I did three mediations via Zoom over the last two weeks.  All of those cases settled.  It’s not that these were unique cases – they weren’t.  All of them involved different counsel and parties – and there was no overlap between any of them.  But the Zoom platform felt much the same to me as an in-person mediation.  People were focused – they were available – and they participated.  It’s possible to view in-person mediation as requiring parties to put more “skin in the game” due to the required travel and lack of an ability to engage in other activities during the day.  But I didn’t see any qualitative difference in my Zoom mediations.  People were at home; their families were sometimes in the background; sometimes they were including other activities in their day.  But people were still focused.  They were present in mind and spirit (which is essential for successful mediation).  They got it; they stayed focused and we got the job done (even though a couple of the mediations went late into the evening hours).  In short, the Zoom platform worked.

An alternative might be in-person mediation with masks.  Frankly, that’s going to be far less desirable than a Zoom mediation.  A mask creates a real, physical barrier between people.  It doesn’t lend itself at all to the connections that drive mediation.  It may sound surprising, but the human element necessary for mediation comes through well on Zoom.  As a mediator I’d far more prefer to mediate a case via Zoom than an in-person one with masks.  That’s not to say a “masked mediation” won’t be successful.  But with masks those connections which are so essential to trust, understanding and connection will be much harder to form.

My sense is that counsel who have tried mediation by Zoom will have a better opinion of the process than those who haven’t.  Following my Zoom mediations I’ve consistently received comments by counsel that the process operated better than they thought it would.  So while there’s still an ability to look to the future for in-person, maskless mediations, it’s entirely possible that for the foreseeable future the cases that get resolved at mediation will be by Zoom or a similar platform.

Robert B. Jacobs mediates business, real estate, construction, personal injury, probate and trust cases throughout California. He is a designated SuperLawyer. He holds an AV rating with Martindale Hubble and is serving as the chair of the Contra Costa County ADR section and the co-chair of the Alameda County ADR section. Reach him at

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Copyright 2017 ROBERT B. JACOBS