CLIENT ADVISORY: WITH COVID-19, IT’S TIME TO CONSIDER SELF-REPRESENTED ADR INSTEAD OF LITIGATION

The current COVID-19 crisis has severely impacted the civil court system.  Already overwhelmed prior to the pandemic, courts have had to deal with closures and the transition to online hearings.  Most surveys show delays in the majority of filed cases, while new case filings have dropped significantly due to the overall uncertainty caused by the pandemic.  For litigation already ongoing, parties and their attorneys must weigh the effects of delays and the parties’ continued ability to pay attorney fees if the current recession endures or devolves into a depression.  Attorneys facing significant drops in new cases may be reluctant to settle existing cases too soon.  Meanwhile, many businesses with legitimate claims may forego litigation for these same reasons, leaving unresolved the losses suffered in the first place.  Some businesses must decide between not addressing an ongoing business loss and enforcing a claim it may be unable or unwilling to pay for.

One often overlooked solution for parties in dispute is pre-suit alternative dispute resolution (ADR).  ADR—primarily mediation and arbitration—present compelling alternatives to litigation for parties with pressing claims but limited time and/or resources.  Mediation provides parties with a means to achieve a quick settlement out of court with the assistance of a neutral (the mediator) who brings the parties to a compromise they can live with.  On the other hand, arbitration is an adjudication out of court by a neutral (the arbitrator), whose job it is to declare a winner and impose an award like a judge but in an expedited manner.  While courts will often order parties to mediate or arbitrate after litigation has commenced, agreeing to mediate or arbitrate prior to litigation (pre-suit) is more cost-effective and preferable.

As with court cases, most ADR is conducted by parties represented by lawyers.  While the need for competent counsel is generally manifest, expense is a deterrent for many these days, particularly in matters involving less than $100,000.  For parties wishing to resolve their disputes in the most cost-effective way possible, both sides could appear without counsel to mediate or arbitrate their dispute.  Self-representation in ADR occurs in family, employment, securities, and small claims disputes, among others.  However, if one side is represented by counsel, an inherent imbalance occurs, which can strain the neutral’s ability to ensure a fair process without unduly assisting one side over the other.

If both sides are self-represented, the process becomes more balanced and the neutral’s role is more easily preserved to the benefit of both sides.  With the current disruption to the court system and the pressure to avoid undue expenses, a mutual self-represented mediation conducted via Zoom could cost a fraction of litigation in court and be concluded in 1-2 days as opposed to years of litigation in many cases.   For businesses seeking to resolve their dispute out of court, ADR (with or without legal representation) should be seriously considered before litigation.

Coradin Law P.A. offers ADR services as a neutral and as counsel to parties.  Ahpaly Coradin, Esq. is a mediator and arbitrator with experience in resolving commercial disputes.  Mr. Coradin provides ADR services in English, French, Portuguese, and Spanish.

To inquire about our services, please contact us at +1-305-714-9532 or at ahpaly@coradinlaw.com.

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Last Modified: June 1, 2020