The trouble with Litigation

“Experience is a name everyone gives to their mistakes”

Oscar Wilde

Litigation is by its nature adversarial, if you get your day in Court you (or your barrister) will try and undermine your opponent’s case with interrogation, documentation and case law, whilst the other side attack your case in the same way. It’s time honoured, its generally respected and some disputes will never resolve without it. It can be thrilling theatre, the unexpected question, the collapsing witness, the summing-up and the reasoned judgment.

But what about the risk? Remember the balance of probabilities, all one party has to show is that it is more likely (or not) that ‘x’ did (or did not) happen. An even chance that cuts both ways. There are very few certainties and plenty of surprises.

And then say you get to Court; consider, will the process allow you say what you want/ need to be heard? If is not deemed legally relevant, its probably not in – no matter how much it means to you - and in reaching his conclusion the Judge is bound by legal precedent and influenced by his own views of the world.

So, all parties invest considerable time and money in to preparing and prosecuting a claim, they cope with Court delays, a public hearing, chance the vagaries of one person’s interpretation of proceedings and risk copping a bad one! What then? Grin and bear it, or take on the additional risk and expense of an Appeal – always assuming the option is open?

Consider then the alternative. It’s quick to arrange, it relatively cheap, its confidential but binding if agreement is reached, and you can introduce what you want, and be as creative as you want to reach a resolution that works for all parties.

The answer is mediation; why not give it a try if you’re both willing chances are a settlement is achievable and if it isn’t, you’ve lost nothing, you’re still free to litigate nothing you’ve said can be used against you.

In a mediation it’s all about the parties; it’s your dispute, your mediation and your settlement. The mediator is simply there to assist, challenge where necessary, but not to Judge or Order. The decisions are the parties alone.

“The first duty of a man [Sic.] is to speak; that is his chief business in the world”

Robert Louis Stevenson