In the last 15 years ADR has come into its own as a valuable dispute resolution methodology. Indeed, many real estate contracts require a mediation effort before a party is able to claim “prevailing party” attorney fees – if they later file suit and win. That is a big incentive to participate in a mediation.
Courts have regularly nudged, or even ordered parties to a lawsuit into a mediation (court sponsored, or private), and just about every case is required to attend a Mandatory Settlement Conference in the days or weeks before trial.
ADR comes in two forms, really; 1) mediation (where a mediator works with the opposing parties to dive deep, explore what their real interests in the litigation are, and then work through the competing issues to get to a settlement – while the parties still have control over their destinies), and 2) arbitration (where the combating sides present their case to an arbitrator, sometimes three, who makes a decision for them – just like a judge would in a trial).
Most (90%+) cases settle, and an early mediation can save tens of thousands of dollars in legal fees and lost time and money. Arbitration typically saves only a little over litigation, and the risk in an arbitration is an arbitrary arbitrator. (There is no right of appeal of a bad arbitration decision…)
The biggest impact we (as litigators) see as a result of COVID 19 on the court system is the additional delay caused by lockdowns. Cases from as far back as 2016 are now being set for trial in mid-late 2021 – a five year delay! Many litigants simply can’t afford to have their claims in limbo that long.
So, ADR became an option to them – even when, before, they might have said no to ADR.
And yet, even ADR processes are impacted by COVID 19. After all, what ADR centers are open for business? And who wants to spend all day in a conference room with a bunch of people you haven’t ‘bubbled’ with – and don’t like to boot?
Enter, stage right, ODR – “On-Line Dispute Resolution.”
As I said earlier … I ALSO accept cases where I act as an ODR Mediator.
(We continue to represent parties in litigation and ADR-ODR cases as well….)
I’ve watched my clients suffer through the financial and emotional turmoil of litigating a case. And as I’ve often said: “I try to talk them out of litigating before I ever talk to them about litigating.”
The COVID 19 impact on the court system, the continued delays till 2021 and beyond, the extraordinary expense of litigating, has all come to a head in 2020.
We’ve all thought “There’s got to be a better way.” I think mediation, ODR mediation, is that way.
The technology is in place – the litigants have adopted and adapted to “on-line” video-based communications (who heard of Zoom before February 2020?) – and the future of traditional ADR and court litigation looks bleak.
If you find yourself involved in a real estate related dispute: boundary, easement, partition, fraud, non disclosure, breach of contract, broker negligence, even landlord-tenant, and need a mediator deeply experienced in that field, give me a call. With 40+ years as a real estate broker and 23+ as an attorney focused on that industry alone, you won’t need to spend time “teaching” me about the legal issues or industry practices.
And, with ODR, the dispute can be based (AND RESOLVED FROM) anywhere in the USA.
Let us know if you have a need for a real estate ODR professional.
