Shari Published By the ABA: "Tomorrow is Promised to No One. Present Bias off the Bench to Bat..."
I miss baseball. The Yankees. I miss the packed 4 train. Wearing my old Tino Martinez jersey. Getting beers at Stan’s and fries at the game. Giving high fives to strangers. I miss my Yankee hat. A mask, my large sunglasses, and a hat feel a bit too “witness protection chic” for me, so I leave the hat at home. Not that I leave home much. I even miss going to Fenway and getting heckled.
More than six months into 2020, Major League Baseball suddenly has a lot in common with the legal community. As MLB finds a way to play ball, the legal community grapples with how to conduct jury trials. Baseball workarounds are easier, there’s more leeway at the stadium than the courthouse, just forget the fans. The same cannot be said about jurors. We have tried virtual trials using online platforms, in-person trials with social distancing, masks, and other virus protection measures, as well as various hybrid approaches.
One thing is certain, as we suspected there are no easy answers. Or are there? Mediation has taken on an even greater role in our socially distant, “do everything virtually” environment. It lacks the drama, glamour, and general excitement of a major league trial, but in some ways it is better. It is the gritty, dependable bench warmer often overlooked in the flash and cash era of big trials, and bigger verdicts. It is more efficient, convenient, and less expensive than the diva trial. It offers finality. It doesn’t need any special accommodations, just a WiFi connection. Mediation is certainly not the panacea for all matters, and criminal defense cases raise a whole host of constitutional issues. However, as baseball works its way through 2020, litigants involved in civil disputes thought impossible to settle in 2019, are now checking their Wifi connections and giving mediation serious consideration....
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