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What You Need To Know Before You Sue?

With the increasing amount of litigation in our society, it's important to give some consideration to alternative ways of dealing with disputes other than in the courtroom.

More and more, lawyers are recommending that their clients consider pursuing methods other than lawsuits as a way to settle disputes. These so-called "alternative dispute resolution" or ADR methods include a number of techniques. Some of these methods, such as conducting a trial in a private court system, tend to be fairly expensive, and lend themselves more to disputes between business than to disputes between individuals, or between an individual and a business. However, a couple of alternative dispute resolution techniques can sometimes be used by individuals at a substantial savings in time and money.

One increasingly popular method of alternative dispute resolution is mediation. In mediation, the parties to the dispute select an impartial person trained in negotiation techniques to help them arrive at a mutually satisfactory settlement of their problem. The mediator's role isn't to impose a solution, but to help the parties find areas of mutual agreement, and to help each of them understand the other side's position. In addition, a good mediator helps each side determine what it really wants to receive in order to come away satisfied with the settlement, rather than seeking the most it may be legally entitled to receive.

Mediation is usually conducted in a very informal matter, and the procedures mediators use vary. Some mediators like to have both parties in the same room, while some shuttle back and forth between the parties in an attempt to keep personality conflicts to a minimum. Mediation is a voluntary process, and generally either party may decide to end its participation in mediation at any time.

In many parts of the country, courts now require couples involved in certain kinds of disputes, such as those concerning child custody and visitation privileges, to attempt to resolve their differences through mediation before bringing their dispute into the courtroom.

If you decide to try mediation as a means of resolving a dispute, be sure to find a well-trained and qualified mediator to assist you. Although a number of lawyers, former judges, and social workers have established firms offering mediation services, just about anyone can claim to be a mediator. If possible, you and your opponent in the dispute should interview several mediators before settling on the one to assist you.

Ask yourself these questions before bringing up a lawsuit:

  1. Do I have a good case?
  2. Can I achieve my goal in some other way -- for example, by proposing a compromise settlement or mediation?
  3. Assuming a lawsuit is my best or only option, can I collect when I win?

If the answer to question one or three is no, or to question two is yes, you probably won't want to sue.

To figure out whether you have a good case, it helps to know that lawyers break each type of lawsuit ("cause of action" in attorney-speak) into a short list of required elements. It follows that as long as you know what the elements are for your type of lawsuit, it's usually fairly easy to determine whether you have a good case. For example, a lawsuit against a contractor for doing substandard construction would be for breach of contract (the contractor agreed either orally or in writing to do the job properly). The legal elements for this type of lawsuit are as follows:

Contract Formation. You must show that you have a legally binding contract with the other party. If you have a written agreement, this element is especially easy to prove. Without a written contract, you will have to show that you had an enforceable oral (spoken) contract, or that an enforceable contract can be implied from the circumstances of your situation.

Performance. You must prove that you did what was required of you under the terms of the contract. Assuming you have agreed upon your payments and otherwise cooperated, you'll have no problems with this element.

Breach. You must show that the party you plan to sue failed to meet her contractual obligations. This is usually the heart of the case -- you'll need to prove that the contractor failed to do agreed-upon work or did work of poor quality.

Damages. You must show that you suffered an economic loss as a result of the other party's breach of contract. Assuming the work must be redone or finished, this element is also easy to prove.

Even if you decide you have a good case, don't rush down to the courthouse to file a lawsuit. First, think about ways to settle your dispute out of court. You can talk directly with your opponent and try to negotiate a mutually beneficial compromise, or you can hire a mediator -- a neutral third person who will help you and your opponent evaluate your goals and options in order to find a solution that works for everyone.

Finally, the answer to the third question -- Can I collect if I win?

Here is how to think about it. Most reputable businesses and individuals will pay you what they owe. But if your opponent tries to stiff you, you may be in for a struggle. Unfortunately, the court won't collect your money for you or even provide much help; it will be up to you to identify the assets you can grab.

Normally, if an individual is working or owns valuable property -- such as land or investments -- collection isn't difficult; you can instruct your local law enforcement agency (usually the sheriff, marshal or constable) to garnish her wages or attach her non-exempt property. The same is true of a successful business, especially one which receives cash directly from customers; you can authorize your local sheriff or marshal to collect your judgment right out of the cash register. And in many states, if you are suing a contractor or other business person with a state license, you can apply to have the license suspended until the judgment is paid.

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