The COVID-19 pandemic has thrust a dagger into the heart of our state court system. The Office of Court Administration is to be lauded, however, for its efforts to ensure that appropriate technology has been utilized to enable the state courts to fulfill vital functions, and the court system and the bar are working hard to implement digital technology into the regular practice of law.

But, as the pandemic continues, it is also clear that we must re-examine the way we approach adjudicating disputes. Our default mechanism of initiating a civil litigation in state court is cumbersome, time-consuming, and expensive. Recognizing these shortfalls, parties often choose some alternative form of dispute resolution. In New York, parties may take advantage of arbitration (which is authorized by statute), or they may choose one of the ways that the CPLR attempts to expedite existing disputes—namely through the involvement of a referee to hear and report or hear and determine, after a litigation has already been initiated.

But these methods suffer from the same significant shortfalls. Parties to an arbitration are provided with only very narrow grounds for seeking vacatur of an arbitration award (see CPLR §7511); indeed, when a party seeks appellate review of an arbitration award, the Appellate Division does not reach the substance of the reasoning behind the underlying award. An order appointing a referee to hear and determine is usually directed toward resolving a discrete issue only and is typically brought into a litigation after the parties have completed discovery.