With the shutdowns, fear and economic pandemonium, it’s easy to forget that commerce is still taking place. Schools continue to teach our children with distance learning tools. Governments are working hard to slow the spread of the disease and ease the financial impact on those who are suddenly and unexpectedly out of work. And yes, many businesses continue to operate through a remote working environment.

Transactions between businesses continue. Rents are still due. Vendor payments are still owed. And while some businesses may inevitably fold or just pause their plans for expansion, what is inevitable is that business disputes will continue to arise. Business disputes are typically resolved with the help of the judicial system, but, with courts effectively closed to all but the most pressing types of cases for at least the next month, you may wonder if there is another way to resolve common business disputes.

Alternative Dispute Resolution Forums Continue To Function

There answer is yes. There is an alternative system already in place to help if a dispute arises between businesses during the crisis. Mediation and arbitration are both available and effective tools to resolve current business disputes while the courts are closed to hearing these cases. Many private arbitration and mediation providers are open and available to assist with dispute resolution. Most, if not all, are equipped to resolve matters via online video conferencing or some other type of remote meeting. In addition to continuing to function despite the ongoing crisis, arbitration and mediation have other advantages over traditional litigation in that the parties can choose certain remedies that may not be available in litigation. For example, in mediation, parties can insist upon a written apology, something that the courts have absolutely no power to command.

For disputes that were in active litigation before the COVID-19 crises, there are other options available. Virginia authorizes the use of any attorney as a judge pro tempore with the consent of all the parties and the court. While the courts may not be hearing non-emergency matters, judges remain available to enter agreed orders and generally maintain docket control. The parties to an ongoing litigation could select an attorney that both sides respect and agree to have a trial through an online video conference. The judge pro tempore could enter an order and resolve the case. At least in Virginia, the ongoing judicial emergency has extended appellate deadlines, so any party aggrieved by the decision of a judge pro tempore could appeal when the judicial emergency is over.

Often disputes can be resolved with proper facilitation. Even landlord/tenant disputes regarding the payment of rent can often be resolved by discussing the situation. GRDD Law’s own Jeffrey S. Romanick was just featured Friday evening, March 27th on WUSA9’s
“The Q&A”, advocating exactly this type of discussion. See link to interview at the top of this Newsletter. It should be noted that it is essential to reduce the agreement to writing.

Parties Must Agree To The Alternative Forum

The downside to Alternative Dispute Resolution is that it does require agreement between the parties. If the underlying contract between the parties does not include an arbitration or mediation provision, the parties must agree now to resolve the dispute through a mediator, arbitrator, or a judge pro tempore. The parties may agree it is worth trying to resolve matters now so that business can move forward when the crisis has abated.