Litigation: There are not always winners and losers (not should there be)

30 / 04 / 2020

Well over 90% of disputes settle before a final trial. Those that do proceed to trial are often those areas where the law may need clarification, the evidence presented by the parties is not consistent,  the parties have dug their heels in or in a small number of cases, they have been badly advised.  As a result, the Courts continue to encourage an early dialogue and it is prescribed by pre-action protocols that parties must consider alternative dispute resolution mechanisms.  Not exploring narrowing the issues or trying to amicably resolve the dispute prior to proceedings being issued  can lead to the Court imposing costs penalties.

The Covid 19 pandemic is likely to lead to even more focus on early settlement as many parties are experiencing the same challenges and need a quick resolution to disputes in order to progress getting back to normal trading.  The pandemic has already caused a huge number of breaches of contract in all sorts of contacts for goods and services.

When settling ongoing litigation or resolving at an early stage, it is often said that if all parties come away a little unhappy with the result, then it is a good compromise.  Compromise is required to make any settlement negotiations productive, whether through a formal channel such as mediation or through informal discussions  or meetings (even perhaps using a mutually respected third party known to all parties as a mediator for smaller value disputes). It is still essential to know and explore your rights if matters can’t be resolved, but an early engagement can resolve the dispute quicker, often cheaper and without a further drain on management time.