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Dispute management in a time of COVID-19

dispute management

Lawyers tend to do well in a recession. Whether they realise a ‘cash in the bank’ economic bump will, however, depend on the capacity or willingness of those in need of their services to pay. The expected COVID-19-influenced recession could tell a different story for lawyers.

The president of the Jamaican Bar Association has be quoted in a recent newspaper article as saying that lawyers are already seeing a decline in business as a result of COVID-19. In the United Kingdom, the prognosis is also bleak, and the Bar Council has indicated that 81 per cent of chambers could fold if they do not receive an economic stimulus.

Should practising lawyers be planning their exit from the profession? Should those contemplating a career in law be changing their minds? Is the future for the noble profession marked for doom and gloom? Surely, the future cannot be all doom and gloom.

COVID-19 is a game changer. Global travel bans and restrictions have been implemented, and with them incapacity or significant limitation of opportunities for physical meetings. Courts have been shuttered or significantly scaled back in their operation, physical implementation of projects has stalled, the global logistics and supply chain has been severely interrupted, and in the main contracts requiring performance of agreed obligations are still holding firm. In this state, the perfect storm looms large on the horizon or is already being felt by businesses and economies around the world.

With courts not at full operation, if at all, however bullish one may be about litigation it must now be clear that the litigation process is inadequate to serve the needs of the business community. Apart from its lengthy process and cost, the clear limitations of litigation include a requirement that it adheres strictly to established procedures.

A litigation process that requires, for example, mandatory appearance in court, while at the same time including little or no built-in capacity for complementary dispute management services, cannot be fit for these times.

While a stamp of “inadequacy” on the courts in Jamaica would be considered unfair, it is likely to be so labelled in this COVID-19 lockdown era. The chorus will, of course, be loudest among those who have, over time, and for varied other reasons, found the litigation process incapable of serving the needs of modern societies.

Time has come for a reimagining of the prevailing architecture for, and understanding of dispute resolution in Jamaica. To begin, use of the expression “dispute resolution” should be contextualised with transactions flows in mind. Another significant factor for consideration is the overly slow progress towards the establishment of a genuine multi-door system of dispute avoidance and management for use by disputants. Such a system, when implemented, should be fully supported by all stakeholders, including the courts.

It is important to, as well, recognise that litigation, notwithstanding its constitutional right of access to the courts for all status, has its many limitations, some of which are now being exposed for their nakedness in this COVID-19 lockdown era.

There are emerging new imperatives for effective dispute management, some might argue. Others would contend that what is now considered to be emerging as new have always been, and include:

1) establishment of more responsive project implementation protocols, where possible and as necessary;

2) commencement, continuation, re-engagement, or ramping up of dialogue between contracting parties, with early dispute avoidance or mitigation in mind;

3) scheduling of contract audits and reviews, with special consideration for how disputes are to managed;

4) scoping the possibility of online or other remote options for dispute management;

5) talking to and taking advice from dispute management practitioners, and maintaining a healthy ongoing dialogue with them;

6) Government authorities should review existing licences to ensure that telecommunications providers are compliant with established minimum service standards, including reliable bandwidth and application speeds, data protection protocols, and customer protection codes. If no minimum service guarantees exist and cannot, for one reason or another, be implemented at this time, steps should be taken to ensure that appropriate ones are included in licences when next renewed or granted as new.

After the COVID-19 dust settles, reliable information sources will reveal that some lawyers have received a significant consequential economic bump. The same or other reliable information sources will also reveal that some commercial entities would have done very well as a result of, or despite, the occurrence of COVID-19. Is this the best possible harvest to prepare for? Will the economic bump be sustainable? And if it is sustainable, for whom and to what end?

The COVID-19 era economic bump to be derived from traditional legal practice, and from litigation in particular, will be incapable of securing sustainable economic development for all. Furthermore, the gains to be so derived will be in circumstances where a win for the lawyers could result in the insolvency or bankruptcy for the losing party.

Even if this extreme position is not realised, the implications for a business going forward could still be disastrous, not least because a litigation battle won at huge cost could result in uncollectable battle spoils, and thus the ultimate loss of an economic development war.

A required and more enlightened dispute management approach will recognise that there are horses for courses, and that the COVID-19 era course is likely to require extensive non-insistence upon established rights. It will become clear, as well, that at this time the relentless pursuit of ligation and other inflexible adversarial dispute resolution options is best removed from the menu. Dispute management, with a focus on options such as [re]negotiation, good offices, mediation, med-arb, arb-med, and neutral evaluation, to be engaged online, should then be seen as infinitely more viable options.

Author: Dr Christopher P Malcolm, FCIArb, FAiADR, is an attorney-a-law admitted to practice in Jamaica, British Virgin Islands, Dominica, St Lucia, and Belize. He also serves as senior lecturer in the Faculty of Law, The University of the West Indies, Mona Campus and secretary general of the Jamaica International Arbitration Centre Limited (JAIAC).

This article was first published by Jamaica Observer.

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