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Pitfalls of Litigation

Litigating a dispute in court often results in a higher level of conflict than alternative dispute resolution medthods, such as mediation and arbitration. Traditional, court-based resolution of disputes involves a case being presented to, and a decision being made by, a judge or jury. This adversarial process carries with it some unique and significant drawbacks that should make litigation a last resort after all forms of alternative dispute resolution have been exhausted. Some of the notable disadvantages of litigation include what lawyers call “CARTS”:

First, and perhaps most notably, the cost of litigation far exceeds the cost required to settle a dispute through alternative dispute resolution methods such as mediation or arbitration. While the parties may have to pay for a mediator or arbitrator to facilitate the resolution of a case, this cost pales in comparison the cost of litigating the same dispute. Whether they are charged hourly or by a flat fee, attorneys’ fees can be quite high depending on the amount of time spent and how long the dispute takes.

Litigation is a last resort after all forms of alternative dispute resolution have been exhausted.

The high cost of litigating a dispute also creates questions of fairness in terms of access to the court system and resources, since some parties may be able to effectively “bully” other parties out of a claim simply because they have deeper pockets and can afford to drag out a case for months or even years. Lastly, even if a favorable result is obtained by a judge or jury verdict, the value of this result may be minimized by the amount of money spent in efforts to obtain it.

Coupled with the enormous time commitment, the stressful nature of any legal dispute and high stakes involved with a “winner take all” scenario, being a part of a litigious dispute for an extended period of time will have an adverse effect on everyone involved. Many times, this happens when the claims that are made in court by one party are vindictive or hurtful toward the other in an attempt to win the argument. The emotional well-being of the parties involved in these disputes is also further compromised when the case involves parties that intend to preserve future relationships with one another as well.Often, existing relationships are sacrificed in exchange for being victorious on a particular claim.

Generally, the adversarial nature of the litigation process is that one side is deemed the “winner” and one side is deemed the “loser,” thereby imparting an all-or-nothing mentality on the case as a whole. Unfortunately, this mentality is not effective in cases that involve unique fact patterns and do not conform to this “one-size-fits-all” model. While those who think that their case is flawless may have more confidence in proceeding to trial for a judgment as opposed to a mediated settlement, it is important to realize that the litigation process is unpredictable and no outcome is guaranteed.

Another major drawback of litigation is the time commitment required. Even if the issues involved in the case are relatively straightforward, going to trial takes time and it is not uncommon for a case to take many months, if not years, to resolve. For more complex legal matters to progress through the legal system, the struggles of coordinating schedules with each party, their lawyers, and the always congested court dockets can  mean that a case may not be resolved for several years. Additionally, the amount of time that each party has to spend appearing for court dates also tends to take its toll on litigants.

The value that parties assign to their time, whether for personal or work-related reasons, undoubtedly should play a part in the determination of whether or not a case should be litigated.

Unlike an alternative dispute resolution session, where only the people who are invited or are absolutely essential to the progression of the case can attend and the information communicated during the session is protected from being discovered or admitted as evidence, anything discussed or argued in court becomes public record, and courtrooms are generally open to anyone. While privacy and confidentiality are always important factors in the resolution of all disputes, these concerns become even more influential when the case involves more private, emotionally-charged issues or family matters that the parties would prefer to keep out of the public eye.

Confidentiality is also a chief concern for business owners and corporations who wish to protect intellectual property and trade secrets that might otherwise become a matter of public record after a courtroom proceeding. These are undoubtedly concerns that should be taken into account when deciding whether to proceed with litigation or alternative dispute resolution methods— such as mediation and arbitration—that guarantee confidentiality.

While there are certainly scenarios in which litigation is required to resolve a legal dispute, the pitfalls discussed above prevent it from being the exclusive method of resolution for most people. In fact, more people every day are utilizing alternative dispute resolution methods and avoiding litigation for some of these exact reasons, whether because of monetary, privacy, personal, or emotional concerns. Learn more about alternatives to litigation.

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If you’re in the middle of a personal, business or church dispute, contact the nationwide network of Christian professionals at Christian Mediation.

Call our national headquarters in Phoenix, AZ at (602) 340-8400 or contact us online to schedule your free consultation. 

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