As more states move towards legalization, and cannabis use continues to be normalized as a fixture inevitably encountered in everyday life, the potential for cannabis-related disputes arising will grow exponentially.
Whether you’re an employee who feels you have been wrongfully terminated for lawfully using cannabis, a licenced producer who thinks a business associate may have breached a commercial contract, or a property owner who has received complaints or even threats of legal action from neighbors regarding your use of cannabis, it may be daunting to pursue litigation as an avenue for resolving your dispute, regardless of how compelling you think your claim is.
This is not just because of the prohibitive costs and time one must devote to litigating such claims – though this may be reason enough for many people. Rather, cannabis law is an underdeveloped field that presents its own unique challenges and uncertainties that must be considered on top of this.
This largely stems from cannabis’ continued classification as a controlled substance under federal law, clashing with the drug’s status in states that have decriminalized or legalized its use for recreational and/or medical purposes. Courts have evidently had difficulty resolving this incongruity when hearing cannabis-related claims, something compounded by the relative recency of most states’ legalization efforts and the consequent lack of jurisprudence providing precedents for these complicated decisions.
What this has meant, in a significant number of cases, is that courts have refused to award damages for otherwise compelling claims out of fear such an award would be in violation of the Controlled Substances Act, leaving both parties with nothing to show for the time and money they have sunk into resolving their dispute.
Rather than run the risk of having their case get bogged down in technical conflict-of-laws questions, either stopping their pursuit short of a resolution or further prolonging their litigation and adding more digits to their legal bills, many parties who find themselves involved in a cannabis-related dispute have instead turned to mediation.
Mediation is an alternative dispute resolution process where parties to a dispute work with a neutral third party to negotiate a mutually acceptable outcome. In contrast to the rigid structure and formal nature of court proceedings, mediations are flexible and adaptable to the unique circumstances of individual cases. A mediator’s role can be facilitative (assisting the parties in understanding each other’s positions and designing an optimal compromise accordingly) or evaluative (assessing the validity of the parties’ claims and offering an opinion grounded in expertise) depending on the parties’ goals and expectations. In either case, the emphasis is on the development of mutual respect and understanding such that the two parties can resolve their dispute and continue their relationship together or bring closure to their matter.
Given the inherent risk and uncertainty involved in pursuing cannabis-related claims in court, it is advisable for parties drafting commercial contracts in the cannabis space to build in mediation clauses designating mediation as the dispute resolution process in the event a dispute occurs. When choosing the right mediator for your dispute, it is crucial to consider the expertise a given service provider has in the field of cannabis law, as well as their experience mediating disputes.
By Justin Hovey
(Justin is a 2nd year law student and summer student for CansultED. CansultEd is an alternative dispute resolution company that operates exclusively in the US Cannabis space.)