ADR as an Alternative to the Courts

Observations on the Pandemic from a Newly Retired Judge

By Hon. Elizabeth Allen White (Ret.)

Hon. Elizabeth Allen White (Ret.) is NAWJ President Elect and an Arbitrator and mediator at JAMS, handling disputes in business and commercial, civil rights, employment, entertainment and sports, insurance, personal injury and torts, professional liability, real property and construction. lternative dispute resolution (ADR) has become ingrained in the fabric of our judicial system. As a civil judge in the Los Angeles Superior Court, I handled a wide variety of matters: real estate deals gone awry, embattled entertainers going up against directors and production companies, civil rights and employment cases, and a heavy dose of contract disputes and consumer actions. In over two decades as a judge, I saw my inventory of cases rise from around 400 cases to over 600 when I left the bench in 2020 to join JAMS as a neutral.

ADR is a generalized term that encompasses the field of mediation, arbitration, sitting as a reference judge to decide a single issue and serving as a discovery referee to help the parties resolve thorny discovery battles. Whatever form it took, as a judge, I was always grateful for those individuals who chose to work in the alternate private sector to resolve matters brought before public tribunals or that bypassed those tribunals altogether. Their work kept my inventory in a manageable state. Now that I’m retired, I truly appreciate how much neutrals can assist the courts. This has become particularly true during the pandemic, with courts struggling to comply with social distancing and mask mandates, when most litigation has occurred virtually. When I left my courtroom in January 2020, everything was conducted in person except for the occasional conference call. I followed this by a brief sojourn at the California Court of Appeal, where I served as a justice pro tem. When the pandemic hit in March, I, along with my appellate justice colleagues, pivoted nicely to working from home, where we were still able to access briefs, perform legal research and write opinions. The twice-monthly oral arguments were initially conducted telephonically, and later via the virtual platform BlueJeans. Any conferences between the justices were conducted either telephonically or via Zoom. It was seamless.

In the meantime, the nature of the in person work of the trial courts made pivoting to a virtual environment much more difficult. The courts partially closed for a period of time, and when they reopened, judges began working virtually from their chambers, with only a few jury trials conducted in larger courtrooms, which are more suitable for social distancing.

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