Mediation During the Time of Coronavirus


The global pandemic has caused many state legal systems to declare a judicial state of emergency. The state of Georgia is currently under state of emergency protocols that are set to last through August 11, 2020.  When jury trials will restart in Georgia is any one’s guess. I just received a new Order from the Chief Judge of the Northern District of Georgia, Hon. Thomas Thrash, dated July 10, 2020, extending the Federal Judicial Order through August 30, 2020. In his Order, Chief Judge Thrash stated:

Data from the Georgia Department of Public Health reflects that the average number
of new COVID-19 cases per day in the State of Georgia has increased and remains higher
than it was on March 16, 2020, when the Court originally entered General Order 20-01.
The total number of COVID-19 cases and deaths in Georgia continues to rise, and no
vaccine or cure is available to the general public. There has been no change to the
President’s declaration of a national emergency under the National Emergencies Act (50
U.S.C. § 1601 et seq.) due to COVID-19 or to the findings of the Judicial Conference of
the United States that emergency conditions due to this national emergency have materially
affected and will materially affect the functioning of the federal courts generally.

He then ordered:

IT IS FURTHER ORDERED that while there will be no civil or criminal jury
trials in any division of the Northern District of Georgia until after August 30, 2020, grand
jury proceedings may continue to be held, and summonses may be issued to prospective
jurors for proceedings scheduled to begin after August 30, 2020.

In another very interesting Order from the Chief Judge of the Waycross Judicial Circuit, Hon. Dwayne H. Gillis, he declared a Judicial Emergency  in the Waycross Judicial Circuit due to community spread of the virus. The July 10 Order restricts all persons entering the courthouses in the Waycross Judicial Circuit unless they are wearing facemasks. Judge Gillis further ordered the Ware County Clerk’s Office to close on Friday, July 10, 2020 “until further notice.”  Chief Judge Gillis’ Order also hints of exasperation. His frustration with the situation is apparent.  He notes:

“During the pendency of the COVID-19 pandemic, there has not been any official channel for reporting COVID-19 related cases, incidents, or exposure to the Superior Court Judges. Worse still there, even now, as of this writing, exist no mandatory reporting requirement of COVID-19 cases, incidents or or exposures to the Superior Court Judges. However, pursuant to Chief Justice Melton’s…July 12, 2020 Order…provisions…mandate that the Superior Court judges police COVID-19 cases, suspected cases and exposures likely to result in infections. Heretofore, the judges’ knowledge of COVID-19 activity and courthouse penetrations has been haphazard at best, based on the courthouse “grapevine,” rumor and supposition. This is will not suffice as a means to inform judges charged with such a heavy burden.”

In Georgia State Courts, it is a haphazard survey of whether a specific court is open and to whom. It really is on a court-by-court basis. Some state courts are literally locked from entry. Others allow entry by “essential personnel only.” Others have attempted to continue with certain hearings, particularly criminal bond hearings. September 2020 does seem ambitious with Covid-19 cases on the rise again in Georgia.  As Judge Thrash points out in his Order, there is still no vaccine. Many of us trial lawyers believe that jury trials, at least civil jury trials, will not return until there is a vaccine. How can the State order a citizen to appear for jury duty when their simple appearance may jeopardize their lives?

The uncertainty around the return of jury trials has led attorneys to seek alternative forms of resolution for their cases, causing a rise in the number of civil cases being mediated. Many lawyers see mediation as the most effective way to resolve a case right now without the looming pressure of a jury trial.  Courts have been using the Zoom platform to hear oral arguments in the most urgent cases. The judicial system has placed the priority on criminal cases, child protection matters, and domestic violence protective orders. Some of these hearings include in civil personal injury cases that our firm specializes in.  For example, I have had several motions hearings in Georgia State Courts via ZOOM.  As an attorney it is my responsibility to pursue the most favorable resolution possible for my clients. As long as there is a moratorium on jury trials cases will continue to pile up. This pile up is likely to cause delays, and could have drastic effects on trial dates and any potential payouts from verdicts. 

In many cases clients are in need of their verdict or settlement money sooner rather than later. This is especially true in cases where medical bills continue to grow. If timeliness is a concern, then mediation can be an attractive alternative for plaintiffs. During the pandemic, and the resulting state of judicial emergency, mediation has become increasingly popular, and increasingly successful. Of course mediation offers no guarantees, but having control over when your case is heard has additional significance given the current uncertainty surrounding the return of jury trials. 

Since the Covid-19 lockdown and judicial emergency, I and my clients have participated in several Zoom depositions and mediations. All but one case has settled curing the Zoom mediation. This is a good track record that I am proud of.  Mediation via Zoom allows me to try to bring my client’s case to a resolution that, otherwise, we would not see during this Pandemic.

As the backlog on the docket continues, many in the legal profession believe that mediation will continue to be popular. It is safe to assume that the positive trend in the percentage of cases resolved through mediation has helped its popularity. There is no direct replacement for an in-person jury trial, but in these uncertain times the controlled nature of mediation continues to be attractive.

Mediation offers attorneys and their clients an opportunity to work towards a resolution on their own terms. At the end of the day, both sides have the power to walk away from the negotiating table if an agreement can not be made, which is something that cannot be said about a jury trial. In a time full of unknowns caused by Covid-19, mediation can offer a much-needed feeling of control.

Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 31 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.

Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.

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