Zoom has now entered the lexicon of English language words, as a noun, verb and adjective. Just as lawyers and mediators were starting to get comfortable with this technology as a suitable medium to conduct business, The New York Times came out with an article questioning its security, causing lawyers to second guess the wisdom of using Zoom due to fears about security and confidentiality. These fears can and are being allayed with proactive management by the host of the settings, password protected meetings, waiting rooms, breakout rooms and common sense which lawyers and mediators are now adopting in the same way that they adopted the removal of metadata from documents and embraced encryption.

For ADR, there has been a switch from in-person meetings to virtual mediations and arbitration hearings. Mediation centers are pushing out great content on how to use Zoom and best practices for mediating virtually, however questions surround when in-person ADR will resume and whether clients will embrace virtual ADR for the resolution of their cases in the meantime. Many are pushing off the decision whether to use ADR and plaintiff lawyers have raised concerns that insurance companies may leverage comparative financial strength to force through settlements at levels below current trends and expectations.

Against this background, new personal injury claims are down as fewer people travel, yet financial losses from many industries escalate daily and the human costs mount. As with all great financial upheavals, people look for solutions, whether to reinvent themselves and their businesses or to seek financial recourse from responsible parties or contractual agreements that were drafted before the coronavirus wreaked havoc. There will be financial winners and losers, but until jury trials return and some sense of normality emerges the civil litigation industry, its lawyers and clients will have to adapt and explore alternative strategies to resolve their cases.

The new cases that will likely be filed will probably revolve around tort exposure through failure to act in a timely or safe manner, insurance coverage disputes focused on policy coverage for all lines of business, including the definition of damage, loss and business interruption, claims of breach of contract and defenses of force majeure, as well as claims of immunity, or otherwise, of financially secure actors in the current pandemic, which might include large corporations or municipal or governmental entities.

For lawyers on both sides, this will involve sorting through the cases carefully, assessing causation, contractual terms and coverage and, given the nature of the pandemic, this could involve a detailed analysis of the law in multiple jurisdictions which may have differing judicial interpretations of key contractual and insurance terms. To add further uncertainty, no one knows whether there will be sweeping new laws and regulations affecting legal rights and remedies. For plaintiff lawyers, this may mean an additional party may be present in any settlement discussion, namely the coverage lawyer, whereas for corporate disputes the forensic accountant may be a key player in the assessment of the losses and true financial impact as well as the ability of the either party to actually pay for obligations previously agreed before the virus struck and after any resolution is reached.

In the business world there has already been a shift against litigation in favor of renegotiation and the restructuring of contracts and obligations, as all sides recognize their co-dependency, but even those renegotiated contracts may not hold as promises made today could have no meaning in a month or two. Speed will be of paramount importance as long-standing contractual relationships are strained. Being right will be of no benefit in a year's time, if the businesses involved in the dispute no longer exist or are in Chapter 7 or Chapter 11. This has focused GCs minds on business-critical relationships above contractual niceties.

For personal injury lawyers, the dilemma is whether to try to resolve old cases now and hope that the newer cases will be resolved in two years' time, when it is thought everything will be back to normal, or settle now—possibly for less than was expected as the client's personal financial needs may have now taken on a greater urgency. Insurers for their part will have their own pressures to resolve cases, as they anticipate a new wave of potentially policy limits claims to be presented and, with that, the need to resolve long-standing cases to free up the capacity to address the new claims that will likely be brought and reduce exposure to both the indemnity and legal costs of continuing to defend claims against a background of anticipated financial constraint, brought about by reduced premiums and decreases in investment returns. Both sides will have pressures to resolve matters not previously anticipated.

In this environment, speed and compromise will be critical, and for litigators this will mean adopting new strategies, including virtual ADR, as concerns about the liquidity and financial security of the parties cannot be guaranteed. Waiting to see what happens may seem a prudent approach, but it is not without significant risk and is subject to myriad factors, many currently unknown, outside of the parties' control.

Lawyers should consider carefully prelitigation resolution strategies for new claims, including ADR, which has proven to be effective in the business context where parties need to retain a business relationship and focus on addressing the impact of the pandemic.

For personal injury claims, timelines will need to be addressed and careful calculations made concerning the risk/reward of delaying resolution. It is possible that the litigation funding industry will seek to provide solutions; however, they also will have to reassess valuations and liquidity which makes the current uncertain situation so hard to predict.

For those of us who practice ADR, there are obvious opportunities to help the parties achieve resolution where previously litigation had been the favored method of determining contested issues.

Concerns have been raised that virtual mediations "are just not the same," and that is certainly correct. However, they are the best alternative to a live mediation and present unexpected opportunities to both parties. Both parties no longer have the imminent threat of a jury trial hanging over the mediation; however, based on two months of mediating virtually, the  different pressures on both sides have led to a higher success rate than previously achieved in live mediations.

While not every virtual mediation settles, the parties appear more focused on resolution and better prepared, which enables them to focus on the key issues when the mediation starts. In addition, the nature of virtual mediations enables better communication between the client and their attorney during the mediation and less pressure to achieve breakthroughs at any given time on all participants. While this has the effect of reducing the tensions that can occur in a live mediation, the unexpected benefit has been that the parties are better placed to analyze the positions being advanced and respond in a considered way.

Nigel Wright is a mediator, ​arbitrator, attorney and English solicitor. He was a senior partner at two Am Law 75 firms, where he handled mass tort international casualty claims and led a national coverage practice, and served in-house at two specialty international insurers.