Coronavirus and Settlements: A Guide to Enforceable Settlements to Improve Lawyers’ Cash Flow and Reduce Congestion of Cases

Coronavirus and Settlements: A Guide to Enforceable Settlements to Improve Lawyers’ Cash Flow and Reduce Congestion of Cases

Copyright © 2020 By Dr. Raphael Christopher

Introduction

Coronavirus (COVID-19) has, without a shadow of doubt, decimated the landscape of civil litigation. Yet, the very nature of human beings involves conflict, and this pessimistic trend remains unaffected by Coronavirus and this view is further reinforced by the images of people fighting in shops and supermarkets in the so-called developed countries over toilet rolls and sundries.

However, settlement of disputes by alternative dispute resolution (ADR) methods is universally acknowledged to be at the forefront of conflict resolution and made, quite rightly, mandatory upon all parties by means of court orders, judgments, and legislative enactments.

In these uncertain litigation landscapes, how do practitioners grapple with this thorny dilemma of achieving a just and timely resolution of their clients’ disputes, especially when courts and other judicial apparatus are on lockdown or similar?

I make the following recommendations, which in my view, if followed by practitioners, ought to produce good solutions for their clients, increase their cash flow, reduce congestions of cases in courts and enable the administration of justice to continue, despite the ravages of Coronavirus.

As an aside, may I highlight the sad situation that most legal practitioners’ livelihoods are at risk in these Coronavirus uncertain times and in that regard, may I raise awareness to the powers that be, our Nigerian Bar Association (NBA) in conjunction with state bar associations to immediately consult on how best to help ailing lawyers to make ends meet. A raft of measures immediately come to mind, such as deferment or reduction in bar practicing fees, establishment of food banks and zero interest loans to members of the bar who are seriously in need of assistance, and if these or any others are agreed, may these measures be given great publicity so those who need it most are made aware of its existence.

Without prejudice to what I have said in the foregoing paragraph, to help fellow practitioners increase their income, I suggest that those who are engaged in current litigation matters or appeals pending in the courts or litigation matters not yet filed in court, should consider my two-part proposals with a view to having matters settled, saving courts time, saving costs and freeing up the courts backlog, and thereby achieve a speedy and just solution for clients, which means you get paid quicker. My proposals, which are in two parts, are outlined below.

Proposal: Part 1

1. Consider carefully whether the case or matter being handled is suitable for mediation or settlement.

2. Be realistic about your clients’ chances of success. If your clients’ chances of success in litigation is 60% or less, consider carefully if you should not mediate or settle on terms.

3. If you agree to mediate then consider the part two of my proposals. If you do not agree, there is no problem as there are many cases that may be unsuitable for mediation or settlement.

Proposal: Part 2

1. Consider using a remote mediation and settlement meeting which will be governed by an agreed Joint Remote Settlement protocol (JRSM) with the objective that, if practicable, a legally binding settlement is to be achieved within 12 weeks from start to finish.

2. The parties MUST agree in writing to a jointly drafted protocol suitable for their cases and matters, as no two matters are the same. Any variation of this protocol should be in writing.

3. The parties should undertake to conduct the negotiations and implementation of a JRSM agreement in good faith and make every effort not to allow the JRSM and the agreement in that respect to be a source of conflict or disagreement between the parties.

4. All documents to be served as word documents or PDF files electronically.

5. Set up a WhatsApp group for counsel for both parties where candid exchange of information and communications can be achieved to keep the JRSM on track.

6. Fix a date for the JRSM meeting—a time period of 14–21 days may suffice but this is dependent on the parties.

7. Agree time, say 7–14 days, for exchange of documents, using secure servers and encrypted emails.

8. The claimant should serve a short case summary with a spreadsheet that will detail the computation of any amounts claimed and the bases of that claim. This spreadsheet should allow the defendant to make comments and observations.

9. The defendant to serve, within seven days of its receipt of the claimant’s case summary the defendant’s case summary in response with a spreadsheet attached, detailing any amounts counterclaimed or owed it and this document must allow the claimant to make comments and observations.

10. The legal representatives of both sides have equal responsibility to arrange suitable virtual telephony communications for the JRSM meeting for their clients and for all parties, so everyone is available and ready to participate in the JRSM meeting.

11. The JRSM should start at 10:00 am and finish when a binding agreement has been reached between the parties, with the timings and durations of any breaks agreed in advance not to impede the JRSM meeting.

12. If for any reason, any party behaves unreasonably without any clear explanation and cuts off communication for more than 2 hours, the other party may treat this as termination of the JRSM meeting and may end its involvement without any further notice, and will be at liberty to mention this to the court, so the court may consider a punitive cost award in its judgement.

13. The meeting can be conducted using an Internet meeting software such as Zoom, Microsoft Teams or Skype for business software.

14. Both sets of legal representatives must make full, detailed and accurate notes of what transpired in the JRSM meeting and where both parties achieve a settlement of the dispute, then a draft court order and or an agreement should be produced, agreed and signed by both parties on the same day, which will detail the settlement reached and the implementation timetable agreed.

Possible Challenges

For completeness, there may be problems and disadvantages in my suggestions. The parties may be too far invested in the litigation to agree a settlement. The JRSM requires a certain amount of technical expertise to actualise and that may be a cost to be factored into the equation. Another disadvantage is where parties have different native languages so an interpreter may be necessary.

Yet another disadvantage is where parties have disability challenges, such as serious medical conditions like blindness or visual impairment and deafness. In such cases, discussion should be had with all parties to find a suitable solution.

Conclusion

It is my belief that the above proposals, despite the disadvantages, are on balance eminently workable, fast and economic and—provided both parties show willingness to settle matters—the benefit to both parties, the acceleration of their recovery of costs, will improve their cash flow, in this Coronavirus-stricken landscape, help reduce the backlog of cases in courts, and free up precious courts time to deal with more appropriate complex and complicated case.

Copyright © 2020 By Dr. Raphael Christopher