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The Pandemic’s Silver Lining for the Courts
By Michael R. Diliberto
The coronavirus has led to inconvenience, case backlogs, and court closures across the nation. Yet thanks to Zoom and other videoconferencing platforms, commercial mediators and arbitrators have stepped up to fill the void and remained on the front line to help parties resolve disputes out of court. Virtual bargaining tables and courtrooms have quickly eclipsed in-person models as the preferred dispute resolution choice—a testament to the quality of service and effectiveness neutrals provide with remote access.
It appears that Zoom mediations (and even hearings) are here to stay. What about the court system? Guidelines issued by the Conference of Chief Justices (CCJ) and Conference of State Court Administrators (COSCA) state: “The COVID-19 pandemic is not the disruption courts wanted, but it is the disruption that courts needed: to re-imagine and embrace new ways of operating; and to transform courts into a more accessible, transparent, efficient, and user-friendly branch of government.”[1]
The National Center for State Courts (NCSC) conducts an annual State of the State Courts poll. The June 2020 poll sought public opinion about going to court in person during the pandemic and how people felt about appearing on juries remotely. The survey revealed the following:[2]
(1) Nearly two out of three people said they were receptive to appearing in courtrooms remotely —a significant increase from the 2014 survey, when only two out of five were receptive. This finding reflected the public’s growing comfort level with technology and its discomfort with being in close proximity to others during the pandemic.
(2) Regarding whether respondents would be more comfortable serving on juries in person or remotely, 44 percent stated remotely, 32 percent expressed no preference, and 23 percent stated in person.
(3) About two-thirds of respondents stated that courts should require people to wear masks in courthouses, and at least 70 percent stated they would be more comfortable in a courthouse that enforced social distancing, checked temperatures at the door, required court employees and visitors to wear masks, and tested for COVID–19.
The Judicial Council of California’s Ad Hoc Workgroup on Post-Pandemic Initiatives released an August 16, 2021 report recommending that courts should “expand and maximize remote access on a permanent basis for most court proceedings and should not roll back the increased access to the courts made possible by remote technology to pre-pandemic levels of in-person operations.” Senate Bill No. 241 (Chap. 214), known as the “2021 California Court Efficiency Act,” applies to civil actions and provides in part: “This bill would, until July 1, 2023, authorize a party to appear remotely and the court to conduct conferences, hearings, proceedings, and trials in civil cases, in whole or in part, through the use of remote technology.”[3]
The NCSC’s latest annual State of the State Courts poll conducted in October 2021[4] found:
(1) A majority of respondents believe that courts should continue to hold hearings by video because it allows them to hear more cases and resolve cases more quickly, and it makes it easier for people to participate without having to travel to a courthouse, take time off work, and find childcare.
(2) Large numbers of respondents indicated that barriers to getting to a physical courthouse exist, including 49 percent who indicated that the distance they would need to travel to reach their courthouse would be a problem for them.
(3) Regarding remote access, the survey consistently finds a major difference of opinion based on age, with younger respondents much more likely to embrace technology solutions. Most respondents have the technology tools for remote participation: 88 percent subscribe to Internet at home, and 95 percent own a cell phone.
The pandemic’s silver lining for the courts is aptly stated in the CCJ/COSCA guidelines: “Technology is not a panacea. It does not and should not replace the fundamentally human character of justice. However, it provides a unique opportunity for courts to ensure that all parties to a dispute—regardless of race, ethnicity, gender, English proficiency, disability, socio-economic status or whether they are self-represented—have the opportunity to meaningfully participate in court processes and be heard by a neutral third-party who will render a speedy and fair decision.”
Remote access to the court system continues to expand and improve. As the Beatles sang, “It’s getting better all the time.”[5]
Michael R. Diliberto is a mediator and arbitrator with ADR Services, Inc. His monthly articles about litigation and strategies for settlement negotiations are at www.DilibertoADR.com.
[1] Guiding Principles for Post-Pandemic Court Technology 1 (July 16, 2020), available at https://www.ncsc.org/__data /assets/pdf_file/0014/42332/Guiding-Principles-for-Court-Technology.pdf.
[2] Available at https://www.ncsc.org/__data/assets/pdf_file/0020/62390/2020-Annual-Report.pdf.
[3] See CODE CIV. PROC. §367.75, effective January 1, 2022.
[4] Available at https://www.ncsc.org/topics/court-community/public-trustand-confidence/resource-guide/state-of-the-state-courts.https://www.ncsc.org/topics/court-community/public-trust-and-confidence/resource-guide/state-of-the-state-courts.
[5] SGT. PEPPERS’ LONELY HEARTS CLUB BAND (Capitol Records 1990) (1967).