Is Court the Only Solution?

If you have reached an impasse or a breakdown in negotiation in a dispute involving legal matters, your first impulse is to call an attorney. Disputes often develop into serious conflicts between tenant and landlord (commercial or residential), vendor and purchaser (conflicts over title, hidden defects), syndicates and co-owners, franchisors and franchisees, etc. Conflict is inherent in the human condition, however the manner in which we diagnose the conflict and determine the most appropriate process for solving it, can greatly affect the outcome. There are ways to deescalate a dispute and resolve it in a way that is collaborative, less costly and perhaps even less stressful. Indeed, there is a spectrum of possible processes that can be selected. These include but are not limited to moderated settlement conference, early neutral evaluation, mini-trials, mediation-arbitration, arbitration, ombudsman etc. In fact, there are times when the conflict can be resolved and/or managed in a way that the parties can continue a valuable business or personal relationship.

In order to comprehend what the problem is, it is necessary for the professional to actively listen to the client and to gather as much information as possible. Information may be difficult to retrieve initially, especially if litigation has not commenced, since the initiation of litigation comes with pieces of evidence i.e. exhibits. Furthermore, litigation often involves examination of opposing parties where they are often asked for further information which can then be substantiated by documents that are produced. This is a long and expensive process.

As an attorney for over 35 years and an accredited mediator, I can attest to the fact that the appropriate process is not always litigation. Litigation is often costly, time consuming and emotionally draining. However, sometimes there is no other choice, as when there is a breakdown in the negotiations and there is a limited time period to enforce the rights before the courts due to prescription or statute of limitations. For example, if a homeowner was in a dispute with a general contractor over shoddy and/or incomplete work done on his or her home, there is a limited time period in which the homeowner may legally sue the contractor. If they wait too long, they will have no legal recourse. I will now briefly outline some of the other options available.

Moderated Settlement Conference (Court-Assisted Mediation)

Even if the lawsuit has begun, it is possible to have a mediator, such as an active or retired judge intervene, who may assist the parties to enter into an agreement on their own volition. In Quebec quantitatively this has meant a great reduction in the number of cases that actually go to trial, saving costs, time and often preserving relationships. One of the advantages is that if litigation has already begun, the mediator is paid for by your taxes, i.e. no additional cost to the parties. However, if the mediation takes place pre-litigation, the parties must pay the mediators for their service. Mediation is not binding which can be an advantage or disadvantage.

Mediation- Arbitration

Another possibility is that the parties foresee that should mediation fail, they agree to go straight into arbitration, which is binding, with no right to appeal. Often the arbitrators will be experts in their field which is the subject of the conflict, such as engineers in cases of hidden defects. The advantage at this point is that the experts might already be aware of the issues if they have participated in the mediation. This would further reduce costs. However, the arbitrators need not have been involved in the previous mediation, and in that case, would have to come up to speed on the issues at hand, with a fresh set of ears.

Early Neutral Evaluation

This possibility will depend on the neutral evaluators’ expertise and personal qualities. The parties must behave in a collaborative manner in selecting an evaluator with subject matter expertise, experience, and a good reputation. One of the key elements is neutrality. Traditionally, former judges, academics, private practitioners or experienced mediators are selected. Early neutral evaluation identifies the main issues, analyzes the relative merits of each party’s case and forecasts the likely outcome and scope of damages. This process will hopefully lead the parties to come to a mutually agreed settlement.

Mini Trial

A mini trial is more conducive to solving business-related disputes but can be adapted to be used in resolving areas of conflict. It converts a legal dispute from a court-oriented problem to one focused on the parties themselves by putting the resolution of a legal dispute back into the hands of the litigants. It is the litigants that resolve the dispute together with their litigant representatives (attorneys, experts, etc.) who are cognizant of the strengths and weaknesses of each case and have the authority to settle the dispute. The lawyer and expert present the summary arguments (legal arguments) before a jointly selected neutral advisor. The litigant representative may ask questions and perhaps cross-examine witnesses, in their attempt to negotiate a settlement. If the parties are deadlocked, the neutral advisor can provide an incentive by indicating the likely trial outcome. The neutral advisor issues a nonbinding opinion to each side, assessing the strengths and weaknesses of each side. The mini trial is confidential and non-binding. There is no written transcript. Most of the preparatory work having already been done, reduces the cost of litigation and may hasten a quick result.

Anyone who has taken the route of commencing litigation will tell you that the degree of emotion or temperature is high. In order to deescalate the situation there are techniques involved that will successfully reduce the combined tension so that it can be managed and lead to a satisfactory resolution. As previously mentioned, there is a wide spectrum of options beginning with negotiation and ending with litigation. Common elements may be found among the different options, and the process selected should be adapted to suit the situation at hand. Weaved into the various processes are negotiation techniques in order to determine the common interests, and underlying motivations, fears, etc. of the various parties, so that they can be addressed, and the parties can collaborate jointly towards achieving a mutually satisfactory result. Once the ice is broken, further progress is possible. Much will depend on the contextual situation, that is the facts, the law and the professionals engaged, who must clearly analyze the situation and provide numerous and creative options that are sustainable.