The disruption to business caused by the corona virus will inevitably leads to disputes. Examples that come to mind are the late supply or the failure to deliver critical supplies in an international supply chain, or the allocation of unforeseen risks and costs. Other scenarios might involve the question whether a material adverse change (MAC) clause has been triggered, or how a force majeure provision has to be interpreted and applied. In most cases, going to court is not really an option, given the urgency involved.
More than ever, it makes sense to consider various methods of Alternative Dispute Resolution (ADR), such as mediation or adjudication. In the current circumstances, the likelihood is that you and your business may benefit more from a quick solution that may be 80% accurate than from a perfect judgment many months, if not years later.
Whether it is about resolving or mitigating conflicts with customers, suppliers or competitors, it is very probable that your opponent would also benefit from finding a solution – and be is only an interim solution subject to a final determination – swiftly in a flexible and informal process.
If your contract already provides for mediation, the formal setting is straightforward. If your contract provides for arbitration, it is worth speaking to the arbitral institution provided for in the arbitration agreement, as many of them also offer ADR services. They may help broker an agreement with the other party.
But even if your contract is silent on ADR, or the matter concerns non-contractual claims, I suggest to evaluate whether it makes sense to speak to the other party about this option.
There are many experienced mediators out there, who are accustomed to setting up meetings, be it in person, by phone or videoconference at rather short notice. They are trained to listen, confidentially and without judgement in order to help you find a sustainable way forward. And they offer the speed and flexibility that the courts typically cannot, and even less so now.
Of course you might feel uncomfortable using ADR procedures for the first time in these uncertain times. Rest assured that many in our profession have been there before. We have first-hand experience of ADR procedures. For what it’s worth, I have trained and practised as a mediator. We are happy to talk you through the pros and cons of ADR in your specific situation and help you to find the right approach for your specific purposes.
Photo: NIAID Rocky Mountain Laboratories (RML), U.S. NIH, SARS-CoV-2 49534865371, marked as public domain, more details on Wikimedia Commons