I recently negotiated a settlement to a dispute that had plagued me for 2.5 years. Here are my reflections from the whole experience:
• My contractor avoided communication with me as much as possible. The lack of communication greatly frustrated me.
• My contractor did not want to negotiate with me until I filed a claim in court.
• Negotiation in this case worked but only with the threat of litigation and and the real concern on his part that he could lose the case.
• Surprisingly, once I wrote out my Bill of Particulars that told the story of my dispute, I felt a huge sense of relief. A burden had been lifted somehow. I knew that someone was going to read my story -- hopefully the contractor and the judge. I felt that I finally had the opportunity to be heard.
• I hoped that I wasn’t experiencing judgmental overconfidence, a cognitive bias which we talked about recently in the law school class that I teach on Alternative Dispute Resolution. I felt hopeful that a judge would rule in my favor but cautious. It is not unheard of that a judge does not rule as a plaintiff hopes that he/she will. I felt confident but not certain that I would win the case.
And here is my negotiation story from my perspective:
Background -- April, 2017 to May, 2017
We built our house in 2001, and we have been trying to solve the severe water run off and flooding issues for years. The problem stems in part from my house location at the bottom of a hill and also in part because water from a large thought-to-be-abandoned cut off pipe on my neighbor's property pours onto our property in the back and side yards. An attorney colleague highly recommended a structural repair drainage and erosion company, saying that the owner was brilliant at solving water problems. I called the owner when water began to seep into my basement utility room.
The owner outlined the following solutions that would solve the water problem: (1) install an open French drain on the side of my house, (2) install a third catch basin in the back yard, (3) install a 4 inch underground pipe to carry some of the water out through the front yard, and (4) apply water proof sealant in the basement, among other measures to prevent water seepage. The work was completed in May of 2017 and I paid $7174 in full before the work commenced as required by the company.
The Problem -- May, 2017
Immediately after the work was completed, it rained and the water problem on the property was actually worse than before the work was performed. The amount of standing water along the side of the house where the French drain had been installed was the same or worse. Now the front yard was flooded and the back yard was flooded as usual with the new catch basin in the wrong location so it did not receive any water. I texted the owner of the company photos and a video of the water issues.
Attempts to Work with Contractor -- May, 2017
We asked the company's owner and employee to meet us at the house to observe what was happening on the property. The owner asked us to get in touch with Arlington County to discuss the water issues. His perspective was that our neighbors should be held responsible for water coming out of the pipe since the pipe is located on their property. We told him that we would contact the County and would stay in touch with him.
Work with Arlington County -- May, 2017 through May, 2019
We started working with two engineers who asked us to be patient since parts of the County were flooding worse than our property. The engineers studied the issue for two years, pulled together a budget for the project and worked with other County engineers to identify all the issues, brainstorm solutions, and evaluate those proposed solutions. They stated that the French drain was never the correct solution for the water issue, nor was it sized to have a chance at solving the issue.
County's Proposed Solution -- May, 2019
The County will install two stubs at the curb that will be connected by the County to the storm drains. My job as homeowner is to pay for drain boxes and a large 15 inch underground pipe to carry the water along the side of my property down to one of the stubs that will be installed on my property. (The other stub is for my neighbor if he chooses to install a pipe on his property to connect to the stub.) The French drain will need to be removed. We have no idea how much the drain boxes and new large (15 inch) pipe will cost.
Further Attempts to Work with Contractor -- May, 2019
We set up a face-to-face meeting with the contractor and his employee to discuss the county’s proposed solution; a couple minutes before the meeting took place the owner’s secretary called to say he would not be coming with no reason given. We told the employee, who did show up to the meeting, that the county engineers had stated that the French drain was never the correct solution and would need to be removed.
Settlement Attempts -- June, 2019 through August, 2019
I texted the owner 6 times in June and July asking him to respond to our concerns. He had told me that texting was the best way to reach him. He did not respond.
We also emailed him 15 times during this time period. The owner responded once to say that our French drain should be cleaned, that he was more than willing to help, and that he would let us know his thoughts – but he did not communicate with us further.
We also called the owner and left messages. I asked him for a detailed written cost breakdown of the work that he had done – but did not get one.
We sent the owner a letter in June asking that he refund us the money that we paid for the French drain, the 3rd drain box, and the 4 inch pipe in the front lawn since these items were the wrong solutions to managing the water problem. We asked him for a detailed cost breakdown of the $7174 that we paid. We did not receive a written response to the June 18th letter.
I filed a claim in General District Court in Arlington County on July 24, 2019. We received an email from the owner that said in part that he could offer a credit for the work performed but did not give a dollar amount. We responded and asked him for a specific refund amount rather than a credit. We did not want to do any future work with this particular contractor.
I heard from the owner by email on August 19th. He stated in his email that “we can credit you $4000 towards the additional pipe to be installed, which was approximately the cost to install the French drain system. Assuming that no permits need to be obtained from the county or engineering plans developed, the cost for installing a large pipe or a series of smaller pipes to be connected to the new stub will be approximately $12,000. This includes removal of the French drain along the fence and placing the stepping stones and gravel back in place.”
Court Appearance – August, 2019
The owner and I met in General District Court for a first appearance on August 30th. The judge asked me to file a Bill of Particulars by September 13th outlining my claim. She asked the owner to respond to my claim by October 11th. She set our next court appearance for October 18th, which would be a pre-trial hearing.
I spoke to the owner in the courthouse hallway in a friendly conversation after the court appearance on August 30th in another attempt to settle the case. He said that he didn’t remember that the water run off down the hill was a problem. I mentioned to him that, due to this run off, we would need a really long pipe installed down the length of my property and fence line to the stub which meant that his cost estimate of $12,000 was very low and did not factor in the length of the pipe needed. In addition, he did not remember why the pipe in the front lawn stops in the front lawn which causes flooding in the front yard, instead of on the very edge of the lawn.
I asked him for a refund of $4000 instead of a credit and asked him to think about my offer and get back to me within a week. I expressed frustration to him that my emails, texts, and phone calls to him had not been returned. I followed up our friendly conversation with an email summarizing our talk.
Bill of Particulars -- September, 2019
In September, I filed my Bill of Particulars with the Clerk’s office and sent a copy to the owner. The owner emailed me offering to settle the case for $3000 plus $1500 in credit toward future work. I responded that I would like to settle the case for $4000 payable immediately. He countered with a $3500 offer. I responded that I had paid him $7174 to solve the water problem and that the flooding was substantially worse immediately after he performed the work. I said that I had a 51 second slide show of photos taken and video shot in the rain just before he did the work and immediately after he completed the work that told the whole story. He responded that it could not be possible that my water problem was worse now than before he did the work. He said that I could bring an expert witness to court to explain how he was at fault.
I did not receive the owner’s Response after it was due to be filed in the Clerk's office on October 11th. I called the Clerk’s office, and I was told that he had not filed a Response.
Settlement at Last! October, 2019
The morning of our second court appearance, which was scheduled for 2;00 p.m. on Friday, October 18th, the owner emailed me that he would accept the $4000 offer I had made to settle the dispute and asked me to draft an agreement to bring to court. When I drafted the agreement, he said that he could not pay me on that day. I worked out with him that he would pay me $2000 by company check that would be hand delivered to me by 2:00 p.m. on October 25th and $2000 by company check that would be hand delivered to me by 2:00 p.m. on November 1st. I added default language to the written agreement that stated that if he did not comply with provisions of the agreement, I would ask the Court for a judgment for the full $7174. We both signed the agreement. He told me that he would not be appearing in court that day.
In court, the Judge accepted the agreement and set the next court appearance for November 4th, stating that if and when the owner paid me in full, I would notify the Court and the Clerk’s office would dismiss my claim.
Stay tuned to see If the contractor pays me in full by November 1st...
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.