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Re-Thinking the Invocation of Mandatory Arbitration Clauses

By David L. Walker, Jr. 

As the most recent "wave" of Covid-19 and/or Covid-19 variants moves across the country, many courthouses that had only recently re-opened for jury trials and in-person hearings are once again shutting their doors. While judges across the State seem to be acting in good faith to make decisions regarding these issues, the inevitable consequence is that the opportunity for parties to resolve their civil business disputes in front of a jury of their peers will likely remain forestalled for the foreseeable future.

Against this backdrop, business owners should take a moment to consider whether it is time to insert mandatory arbitration provisions into their contracts. While I have not always been a strong advocate of binding arbitration – and in certain circumstances have advocated stringently against it – the fact remains that due to the nature of private arbitration, the process is more flexible and therefore more able to continue to function through pandemic(s) and other episodes that have proven to interrupt the ability of government and the judiciary to function. Given the current and continually accruing backlog of jury trials clogging court dockets, it is not unreasonable to project that the civil process will be delayed for months if not years to come. Not surprisingly, in many instances defendants in lawsuits, who may lack any legitimate defense to the claims against them, are reaping a windfall as plaintiffs are effectively deprived from having their day in court.

At the same time, I have participated in multiple arbitrations in the last eighteen (18) months, and I have been able to continue to prosecute cases on behalf of my clients to ultimately obtain a remedy, even while jury trials were halted across the State. While there are certainly pros and cons that one must consider when deciding whether to insert a mandatory arbitration clause into a contract, doing so may present the most effective means for resolving business disputes in the present time.

​​David L. Walker, Jr. is a partner with Flint, Connolly & Walker, LLP. He focuses his legal practice to collaborate with business owners, mid-sized and closely held corporations, as well as real estate owners, developers, and contractors.

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