The COVID-19 pandemic has caused tremendous stress to the litigation capabilities of our court system. Jury trials have been, for the most part, non-existent. Other aspects of the litigation world are now gradually emerging from their doldrums as motion practice resumes to some degree. It will be sometime before the court systems throughout the country are able to handle the pent-up litigation that exists. In the meantime, those of us committed to the world of Alternate Dispute Resolution (ADR) are beginning to see a huge influx of ADR requests as disputants, unable to gain traction with litigation, opt instead for ADR. It is more than likely that this trend will continue.

As just one example, I expect to see a huge spike in the number of matrimonial disputes headed to mediation—the result of the physical closeting of families during the pandemic and most probably the inability of the court systems to process the burgeoning number of litigated matrimonial cases, especially high net worth ones involving complicated financial positions (see David Saxe & Joaquin Ezcurra, Online Mediation of Matrimonial Matters? It Works, NYLJ, Oct. 2, 2020) hence the resort to ADR. Other areas of litigation will likewise experience a significant increase in ADR interest—especially commercial litigation.

How will the current world of ADR handle this? The traditional fare offered up by ADR purveyors is generally either mediation or arbitration. A few general words about mediation and arbitration.