Real estate disputes in Chicago Illinois may be resolved in a number of ways, depending on the nature of the case. Many cases go to trial, but many more settle through methods of alternative dispute resolution, such as arbitration and mediation. However, how do you pick the right method to resolve your clients’ real estate disputes in Chicago Illinois?
For clients who express openness to a number of different resolutions to the case, mediation would likely be the better option. Mediation is best for clients who want to maintain some control over the outcome of their case, but would be satisfied with several different settlement options. A willingness to negotiate is key to the success of mediation.
Mediation is also beneficial for parties who need to preserve relationships. Since the parties attend mediation with settlement in mind, their relationship, whether personal or professional, fares better than if they had gone to court and fought in trial.
Arbitration is best for clients who are convinced they have a winning case and want a quick or final resolution to the case. Though mediation may also provide a prompt finalization to real estate cases, arbitration involves a decision-maker, whereas mediation does not. For many real estate clients, pending litigation impedes their ability to make deals or enter into new contracts, so arbitration would finalize the dispute and free these parties from the case.
As an attorney, you have probably seen your fair share of stubborn or anxious clients. Stubborn clients refuse to even discuss settling the case for fear that they will be admitting weakness. Anxious clients can be fearful of telling the other side more than they wish to, because they do not wish to make matters worse for their interests. Convincing these clients to mediate environmental disputes may be difficult. However, with the right approach, you will be able to show your clients the many benefits of mediating environmental disputes, whether in Illinois or elsewhere.
After investing a lot of time and money in trial preparation, a client may be more sure of its ability to win the case than is realistic. Some clients want to tell the court—and the world—why they deserve to win the case. Of course, attorneys understand that not every trial and hearing is like a television show. Depending on the judge, opposing counsel, expert witnesses, and especially the members of the jury (if there is a jury), the case may not turn out as your clients had hoped—and then they are angry with their counsel. Unless they have taken multiple cases to court, clients do not usually appreciate that the audience may put surprising weight on factors they have discounted. Sometimes a witness falters. Sometimes there is a surprise piece of evidence that they did not anticipate until just prior to trial.
Emphasize the control that mediation gives to clients. No other legal process allows clients to negotiate and discuss a settlement agreement that takes the goals of every party into consideration. Remind your clients that a judge may issue a ruling that is unfavorable. With mediation, however, the client should resolve at least one issue in a manner that he or she likes. This point will especially resonate with clients who are determined to win the case.
After such a discussion, your clients should express more willingness to consider settlement options.
Environmental lawyers in the Midwest and Chicago in particular are not as used to mediation of disputes as their Eastern or Western counterparts. However, the picture is changing. Importantly, an experienced mediator who understands the tensions and issues that are going on in a dispute, such as the unknowns of what remedial activity will be needed, or whether there could be State or federal governmental concern, is able to suggest creative and satisfactory solutions. Many clients worry about mediation because it is foreign to them. Describe the mediation process, its confidentiality guarantees, and its setting. Explain that mediation is more relaxed than court, and that settlement proposals that are discussed at mediation cannot be introduced in your client’s case later, since they are barred by mediation and settlement privilege. It is also important to encourage your client to carefully consider what would be in an ideal settlement agreement. As you discuss possible settlements with your client in yourpreparation for mediation, take note of the issues that are non-negotiable for your client. Additionally, make note of smaller issues to ensure that all relevant information is discussed. Preparing for the mediation is important. Will your client benefit from a detailed statement to the mediator, or is a simplified approach adequate? Determine the strengths of your case, but also do not neglect evaluation of the weaknesses. A good mediator will often comment on a party’s weaker facts or other issues; a skilled attorney needs to have a ready response. Consider also how much time there is for the mediation. If your client needs a settlement, while it is generally not necessary or even appropriate to say so immediately, do not waste everyone’s time. A cooperative and constructive attitude goes an awful long way in getting your opposition to participate in the trade-offs that generally are involved in complex environmental disputes.
Construction law disputes vary in size and complexity. In Chicago, construction law disputes may stem from the creation of a 500-foot skyscraper or from the renovation of a simple one-story home; they may involve a single homeowner and contractor or dozens of engineers, subcontractors and architects. Regardless of the structure at the center of a dispute, attorneys owe it to their clients to provide a candid evaluation of the benefits andoccasional downsides of mediating construction related cases. In locales like Cook County, where mediation may be court mandated, attorneys too often give little explanation of mediation to their clients, and they imply this is just a required and not generally worthwhile procedure.
Taking the time to explain to clients how beneficial mediation truly is will increase the odds that a settlement is reached. Also, attorneys should devote care to the process of selecting a mediator. Too often and hourly rate and immediate availability outweigh the value of an experienced and constructive mediator at the table with the parties. In the construction arena, while in some cases the parties never willagain deal with each other, many times there is value to be found in crafting a mediated solution that is not just expressed in dollar and cents terms. Reputation and opportunity ought not to be neglected.
Attorneys should ask their clients to be prepared to explain the entire problem they have with the situation. For customers, this may include intangible losses, like ability to show a space due to time overruns or construction defects. It also does the client good to figure out what his or her best solution to their problem is, and whether that is best targeted in court or by mediated agreement. The other side may give up things or perform favors to get to mediated private settlement that are unavailable after a trial.
Your clients should also understand that mediation provides them with control over the outcome of their cases. Explaining the mediation process in detail will alleviate your client’s concerns about the next steps in the case.
Although many environmental cases are instituted by state or federal agencies, there are also cases that involve only private parties. These cases have serious implications for the parties involved, not the least of which is the risk that public airing of facts and contentions may stimulate private tort or property related class actions from the general public in the vicinity of the problem. A private mediation or arbitration of such disputes can be invaluable to obtaining a just resolution without undue publicity.
Reaching out to your client’s opposing parties early and suggesting a private arrangement for mediation or arbitration of claims can keep the tort bar from getting wind of potential class action situations. So long as the parties are attentive to their obligations not to cause harm to others, there is nothing at all inappropriate about private dispute resolution.
During mediation, the parties may also call on expert witnesses, such as engineers and medical professionals, to consult on how to create a fair settlement agreement in environmental law and toxic tort matters. Reference to existing state and federal standards on acceptable risks in the environment can be accomplished without need of official approval in a great many cases. Even where there is need for some form of no further action decision by a regulatory agency, it is sometimes advantageous to ask for such a determination after work has largely been completed, rather than beforehand.
Construction law disputes can be some of the most complicated and complex cases that land on a Chicago attorney’s desk. These cases involve numerous parties, thousands of pages of documents, and complicated technical issues.
Most attorneys know that, when possible, it is in the client’s best interests to settle—particularly when doing so will save the client a fortune in legal fees and will reduce the time spent litigating the case by months or even years. As an attorney, there are several steps you may take to increase the odds of settling even the most complicated Chicago construction law disputes.
Early evaluation of the facts in the case is essential, so that there is less risk of missing essential questions of both law and fact. One issue that often prevents settlement is the unrealistic expectations of the clients. You must take the time to explain to your client what is a likely result and what is not. The measure of damages in a given case can vary depending on facts and factors that cannot be understood without adequate investigation. Only then can a client get realistic advice from counsel.Once your clients have an understanding of how the laws apply to the facts of their case, they will be more likely to compromise on certain issues.
Mediation can sometimes be useful at intermediate points in a case, even those that involve numerous parties. Mediation should be scheduled to attempt to settle at least some of the issues in the case and limit issues that must go to trial. A thoughtful and proactive mediator that asks questions of the parties and their counsel can help guide a resolution process that preserves the interests of all (or at least most) parties in maintaining good relations despite the current dispute.
Preparing for commercial or environmental mediation should be taken as seriously as if you were preparing for a trial. After all, mediation may be the end of the case for you and your client. By taking certain steps, you will increase the likelihood of a good settlement—which means you will have a very happy client.
Many attorneys underestimate the importance of preparing their clients for mediation. Mediation becomes so second nature to attorneys that they forget how scary it can be to clients. Explain to your clients how settlement discussions are confidential, and how the mediator cannot be called to testify should the case end up going to trial. When you sit down with your clients and prepare them for mediation, they can relax just a bit and focus on the ultimate goal of mediation—settlement.
There is more than one way to prepare for mediation. Certainly you should review your entire file. Go back over your pleadings, motions, discovery, and any notes you have taken throughout the case. You will likely need to refresh your memory on the facts.
As you go through your file, make a separate folder just for mediation. In this folder, include copies of all documents that you feel are relevant to settlement discussions at mediation. Include extra copies that the mediator may hold on to during the mediation. You may organize this folder however you like; just be sure that you are able to quickly refer to it during mediation.
Most importantly, sit back and think about your client’s situation. Are there aspects of that situation which are not directly dealt with in the lawsuit but are critical or highly valued by the client? If so, mediation is an opportunity to work into a settlement some things that would assist the client going forward. Do not hesitate to discuss this subject with the client, as it may illumine aspects of the situation you had not previously appreciated. A creative approach to the mediation can result with reasonable satisfaction on all sides of the table. That is certainly something to aim for.
Environmental law cases, such as those involving the Clean Air Act, are some of the most complicated, drawn out cases that attorneys handle. The Environmental Protection Agency enforces the provisions of the Clean Air Act, and, in some cases the Agency will agree to participate in mediation. This is particularly true if there is a community aspect to the case, such as a large group of people affected.
As an attorney, it is important to know when mediation may be a good option for your clients. For example, in many environmental cases, the parties are very emotional about an incident that has occurred. Sometimes the government’s position is rigid due to reluctance to cause a backlash from a disappointed group. In this case, mediation may be the best route to try to take. It is most feasible where there is some leadership within the affected community that could represent it adequately at the mediation. The parties will be able to air their concerns and grievances to a mediator, who will then explain the strengths and weaknesses of their case. Often, having a third party with a fresh perspective on the case is all some parties need to be convinced that they should, in fact, attempt settlement. Even a strident group includes people that understand a willingness to compromise can preserve or even create elements of a situation that makes the outcome acceptable to all sides.
Construction companies and contractors do not want their names tainted by being involved in litigation. Just imagine the negative impact a prospect of a lawsuit has on a developer or property owner’s decision on what company to trust with the limited dollars that are supposed to create a profitable and well-built structure! As construction law attorneys know, architectural and construction cases are some of the most difficult and complex claims for attorneys, judges, and juries to understand and present. For any construction case, there may be a dozen players involved, and a complicated interplay of communications, personalities, materials science and engineering can quickly become confusing.
Although judges are sometimes very knowledgeable in intricacies of the law, the complex issues construction case can present may still be confusing to even the most seasoned judge. Rather than risking damage to a case due to a bit of confusion on the part of the judge or jury, many attorneys have begun mediating their construction law disputes in the Chicago area, and have experienced great success in doing so.
One major benefit of mediation for construction law disputes is that it allows the parties greater flexibility in the resolution of their cases. They can leverage their needs and relationships in a manner that gets greater value for time invested than a trial often can accomplish. With a trial, there is only a set means allowed to present and argue the issues of the case and to receive a ruling from the jury or judge. Often the issues for the parties transcend money damages. In mediation, the parties may schedule and structure mediation sessions to allow their continuing business interests to be preserved.
Your clients will also appreciate the confidentiality that mediation provides. Prompt mediation in cases where the disputes have surfaces can sometimes avoid the filing of suit and the negative vibe that litigation transmits to the marketplace and public.
Chicago real estate lawyers know that real estate disputes are slow, expensive, and stressful—for both the attorneys and their clients.
Since real estate litigation can take a significant amount of time and money to resolve, attorneys who can offer their clients an alternative to litigation build positive reputations in their communities. This is especially the case for those clients, such as builders and those who operate their own businesses, whose work and daily lives are disrupted by real estate disputes.
When clients need to preserve a relationship, such as those in homeowners associations, mediation is an excellent choice to resolve these cases. Since mediation is focused on settlement, the parties often feel less stressed and more satisfied after a successful mediation than they would after a trial. Since Chicago trials are adversarial in nature, the focus is usually on a “winner” and a “loser.” Fighting at trial often damages relationships permanently. Therefore, if your client needs to resolve a real estate dispute as peacefully as possible, consider mediation as a solution.
Another benefit of mediation for attorneys is that it fosters client satisfaction with the attorney and the law firm. The obvious reasons for this is that the client is able to resolve his dispute much more quickly and save thousands of dollars in the process. In addition, many clients, no matter how many discussions they have had with their attorneys about possible trial outcomes, will blame their attorney if a trial does not end in their favor. The client is frustrated because, after waiting months or even years to settle a dispute, the client may have gained nothing from fighting his case. Since parties negotiate their own settlements at mediation, there are no unpleasant surprises at the end of the case, and the attorney-client relationship is not damaged.