Comparing Cures for Covid Related Lawsuits
It’s Covid Time. None of us saw this coming.
Vacations, weddings, rent payments, jobs, and so much more, all thrown into chaos, and with that chaos comes uncertainty and disagreements.
- I’ve made or received a deposit for an event, is a refund owed?
- What rent is owed when a leased office can’t be used?
- A project has been delayed or cancelled, who is on the hook?
- What are the rights of tenants and landlords when payments are missed because of Covid?
What if I’ve investigated a bit (or called a lawyer) and tried to work something out, but so far no luck? What if the law says I’m right but civil court delays are going to stretch well into next year? (And they are.) What if the other side really thinks they’re right too, but not enough money is at stake to cover the costs of battling lawyers? What if the other side is just a jerk who will use Covid Time to stall? I’ve heard of arbitration, mediation and now “NDR” (neutral-driven resolution), but which should I use and when? What makes the most sense during Covid Time?
As a recovering attorney with 40 years’ experience in a broad range of litigation, I know that the answers to these challenging questions vary by situation and personality, but there actually (and surprisingly) is a single, common sense way to approach all of them.
Find out if you’re really dealing with a jerk
Invite the other side to resolve the disagreement very quickly, fairly, discretely, and inexpensively, without battling attorneys, by agreeing on a neutral private judge to investigate, mediate and if necessary, decide your dispute. This is the NDR method that Just Resolve can administer. If you and the other side aren’t on talking terms right now, you can contact Just Resolve and, during the Covid crisis, WE will reach out to talk with the other side at no cost or obligation to either party.
If the other side says “Yes”
Then you are dealing with someone who is in fact reasonable despite your impression to date, and who also believes they are right and may be surprised to learn that you too are willing to commit to let the chips fall where they may in a fast and fair process. Either side can contact Just Resolve and we’ll guide both through our simple method.
If the other side says “Hell, No” (or even just plain “No”)
Then you know you are dealing with a jerk. Only a jerk would pass up an invitation that makes so much common sense. At least you are forewarned, and it cost you nothing to find out. In this case, you will have to duke it out ala “Judge Judy” style in small claims court, or if the amount in dispute is too large for that, you will need a lawyer to threaten or file a lawsuit. Your attorney also must then try to persuade the other side’s lawyer to use an alternative dispute resolution (ADR) process like mediation, arbitration or NDR, unless you’re willing to wait a year or more for court to slog through its traditional process, delayed even further by Covid.
Of the ADR options just mentioned, I recommend, in order of preference (1) NDR, (2) Mediation, and (3) Arbitration, but there are valid reasons for each depending on the circumstances.
NDR is generally going to deliver a much better net result for both sides, but once everyone has lawyered up, it’s hard to get agreement from everyone to do it, and your jerk opponent already has rejected it once. Nevertheless, it’s worth asking your attorney to suggest NDR again, because a lawyer’s threat of litigation and the likely involvement now by counsel on the other side may influence the other side’s reply. Early mediation is your next best bet, because that’s a facilitated settlement negotiation with a neutral that could possibly end the case quickly. Mediation’s disadvantages, at least in a case where the stakes are limited, are that it may fail — the mediator has no power to investigate or decide anything — and it will cost significantly in lawyer’s fees, mediator’s fees and your time and energy regardless. Arbitration, which is essentially a private lawsuit, has the advantage of accommodating investigation and ending with a decision, but it is almost as expensive as going to court, and is easily delayed by maneuver and other stalling tactics.
When it’s all over, propose writing NDR into any future contract that you can – as the parties’ agreed way to resolve any disputes that might arise. It works a lot like litigation insurance, and it works on jerks.
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