Most Americans simply cannot afford to enforce their rights in civil cases through the existing court system. To prosecute or defend a claim that one has been wronged is generally very expensive, and cannot be accomplished quickly. Furthermore, those opponents who have money available can wait out and eventually overpower those who do not, no matter where true justice might lie. It is fair to say that unless there is one hundred thousand dollars at stake, which can be collected from the losing party after the case is over, the costs of going to a jury trial are simply too large to make the exercise worthwhile. If an appeal follows a jury verdict, the combined legal fees may well exceed any eventual recovery.
        But cost is not the only problem. If a claimant has adequate funds to pay lawyer and court costs, and has a claim with clear merit to it, the process is so bogged down with procedures that unfold endlessly, by the time a result is reached, it may not matter much. To get to a jury trial in most state and federal courts takes more than a year, and appeals ordinarily take an additional year. By that time the wronged party may be bankrupt, or could be prospering to the extent that whatever is paid has little impact. The legal system is simply too slow to offer effective remedies in smaller cases. If one has a no-cost case on a contingent fee - one where the lawyer is betting on a win, and a percentage of the eventual award as in personal injury cases - the delays are more tolerable, especially if interest on the ultimate award is accumulating during that period.
Bailey & Elliott offers a service designed to provide speedy and affordable dispute resolution called “QUICKSET”, or Quick Settlement. To explain its operation, an overview of the conventional legal system will be helpful.
How It Works
       The parties who have a relationship with one another, or even an ongoing dispute, must both agree in writing to submit to the QUICKSET procedure. If they have a contract - either oral or in writing - QUICKSET can be added to whatever agreement has been made. Bailey & Elliott will furnish the documents necessary to make QUICKSET a binding condition. The documents will be in simple and clear English, without legal formality or jargon. In the document there will be identified a Final Arbitrator - usually a retired judge who is chosen and mutually agreed upon from a list of those available - who will have ultimate decisional power in the dispute if necessary. There will also be a provision that the parties will conduct themselves in a business-like manner, and that they will comply with the Final Arbitrator’s decision even if they are disappointed with it.
       If a dispute arises at any time before the relationship ends, and is covered by the terms of the QUICKSET document, the parties agree to come to Bailey & Elliott to confer and mediate the controversy. Mediation is a non-binding procedure whereby an experienced neutral person attempts, through pointing out the factual strengths and weaknesses on each side, to persuade the parties to reach some sort of compromise to quickly settle the dispute. If that cannot be accomplished, Bailey & Elliott will assist the parties in listing the facts they do agree upon, and to describe those issues in writing which are unresolved.
       If the mediation is unsuccessful, each party will write a letter to the Final Arbitrator describing what he believes the facts are, and what he wants from the case - usually, but not always - an amount of money. If the case is “submitted” on these letters, the Arbitrator may issue a Final Decision, which will end the case. If either party requests a personal appearance to argue his case before the Final Arbitrator, there will be a “hearing” at some designated time and place. During the hearing, each party will be allowed to present his or her views under oath, and the Final Arbitrator will ask such questions as he or she believes will aid in a just decision. He will issue a written decision, explaining why he accepted some arguments and rejected others.
       All costs which arise from this procedure will be divided evenly by the parties, and promptly paid by each. If the decision is troubling to either or both parties, Bailey & Elliott will offer such counseling as may help explain why the result occurred, and how such a dispute might be avoided in the future. Examples are often helpful in understanding how a set of rules, like those described above, might work in an actual case. C, a Contractor, who is renovating a house for H, the Homeowner, hires E an electrical subcontractor to accomplish certain electrical repairs and upgrades which C has promised to H. These are to be done according to a fixed-price bid which E has submitted. E discovers hidden complications that must be corrected in order to satisfy Maine Code. He believes that C knew or should have known that the complications were lurking out of sight when E compiled his bid, and that C should pay an additional amount to prevent E from suffering a loss on the job. C refuses, claiming that E, exercising due diligence and with greater experience than C in matters electrical, should have discovered the complications on his own. At the moment, C owes E money for work already performed but not yet billed.
         In a typical situation, E might threaten to walk out, knowing that his work stoppage will also halt the plumber, the sheet rock crew, and a carpenter from proceeding with their own responsibilities. E knows that H has demanded that the job be completed within 90 days, and that C will pay a penalty for each day of delay after that. He uses the work stoppage as leverage to make C pay. C, on the other hand, has deep pockets and can afford aggressive lawyers. He informs E that (1) he will not pay him what is owed, (2) that he will present a complaint - through counsel - asking the Maine Electricians Licensing Board to discipline E, and (3) that he will file a civil lawsuit against E for all damages resulting from the job delays caused by E’s walkout. Such a lawsuit will take years, and E doesn’t have the money to fight a lengthy legal battle. He knows that C will also criticize’s E’s professionalism when talking with other contractors. In reality, the parties will develop a bitter hatred for one another, bad-mouth each other within the construction trades, and accomplish very little at the end. Both assert that they are totally right, when in fact the fault lies with both of them.
           QUICKSET cuts through this dispute like a hot knife through butter. Either party can, according to the terms of the QUICKSET contract they have signed earlier, require that both parties promptly meet with Bailey & Elliott for Mediation. At this session each will be advised of the apparent strengths and weaknesses of his case, and compromises will be encouraged. If this fails, Bailey & Elliott will assist in preparing a simple written document to acquaint the Final Arbitrator with the basic facts and the issues. Within 24 hours, both parties are required to submit to the Final Arbitrator an individual letter or memo explaining - under oath - why the “other guy” should have discovered the complication before E’s bid was submitted and accepted. At the request of either party, or at his own choosing, the Final Arbitrator may ask for a conference where the parties can be questioned under oath, or required to present photographs or other documents, to clear up any points which remain clouded. He will then render a binding decision within 48 hours (except in unusually complex cases) which the parties have agreed to accept. The work at the job continues while the proceeding is under way, hopefully no more than 7 days total. C may be required to put some money in escrow with Bailey & Elliott to insure that E will be paid if he wins.
           The procedure described above is a very “short-cut” form of what regular litigation would seek to accomplish, but it was performed very quickly and economically because QUICKSET was locked in place. No longer does the party with a comfortable bank account have an unfair advantage over one who has no reserves, or to drag the case out until that poorer party can no longer afford to pursue his rights. The Homeowner, the Plumber, Sheet Rock subcontractor and the Carpenter do not have to suffer because of a problem for which they have no responsibility.