Litigation Battles - how to choose wisely

For those who want some help to choose your battles.

The concept of war and battle is never far from our minds with the current situation in Ukraine, the consequences in Afghanistan of western nations having withdrawn their troops, the ever-fermenting situation in the middle-east and other hot spots around the world. We are regularly reminded of the destruction and decimation caused by war, the deaths, deprivation, debt and debilitation. It’s gut-wrenching to watch the news, especially when what we’re seeing is the use of brute force against a vulnerable opponent. We watch on helplessly, or perhaps even stop watching, we deplore and despair.

Of course the concepts of war and battle are not confined to the actual battlefield. We all face battles of various kinds throughout our lifetimes and being able to ‘pick your battles’ is an important skill. When people are engaged in litigation they are engaged in a battle. Litigation lawyers know only too well how bitter and nasty those battles can be and, like any battle, the fight takes its toll.When people find themselves in litigation it can seem like choices are limited but I’d like to look at what options there are and how to make wise choices in the particular set of circumstances you face.

The first step is to determine whether or not there needs to be a battle. The legal system is geared around ‘alternative dispute resolution’, in other words there are many options for trying to work with the other party(s) to find a solution that is reasonable and works well enough for those involved. The Family Court system requires parties to engage in mediation before a court application can be lodged (subject to various exemptions that apply). There are several reasons for this requirement:

If parties are able to reach agreement themselves, without having the outcome imposed on them, they are more likely to be content with the outcome and to comply with the agreement. There are exceptions to this, of course, but in the main this is the case.

A huge percentage of family law disputes end up being resolved by agreement rather than at a trial, so you might as well try to resolve your dispute at an early stage than go through an expensive court process only to end up reaching agreement anyway.

Court proceedings are expensive financially, especially if you pay for a lawyer to represent you, but also can be very toxic and thus expensive emotionally and psychologically. Engaging in contested disputes makes it harder to work out any future issues amicably and reasonably. If you are the parents of young children you will need to have some form of ongoing involvement with each other and it is worth investing time and effort at an early stage to see if there is a way or working together for the wellbeing of the children.

Court trials are presided over and decided by magistrates or judges. Magistrates and judges are people; they have a lot of experience with people and relationship dynamics but no level of omniscience. Like any human being they have a set of unconscious assumptions and biases. They are usually very busy and when they come to hear your dispute they may well be feeling jaded and tired of people fighting over potentially petty issues. The judge or magistrate who decides your case may get it very wrong. Or they may get it pretty right but you may feel that it is very wrong. There are no guarantees at trial.

If you are willing to try mediation or another form of alternative dispute resolution (ADR) and the other party is also willing to engage in the process, it is a good idea for both/all of you to get independent legal advice so that you are aware of what your legal rights are and have an idea of the range of reasonable outcomes you would be likely to face if you did take the matter to trial. This helps you decide, when the other party puts an option on the table, whether that option is reasonable or their attempt to get you to settle for less than is reasonable. There are forms of ADR that take place with lawyers present to assist and advise you and forms where lawyers are generally not involved. There are pro’s and con’s with each of the different ADR options and it pays to do some background research to see which form of ADR you would feel most comfortable with. The ADR options are also something you can discuss with a lawyer when you seek initial legal advice.

When you are trying to work with the other party(s) to come up with a reasonable solution to your dispute it can be difficult to be objective because there will no doubt be a cloud of feelings and triggers throughout the process that have the potential of derailing the attempt to find a reasonable solution and leave you feeling raw and vulnerable. As far as you can, it is important to be aware of what is triggering your or making you emotional when dealing with the other party. If you find yourself wanting to punish them, or you’re finding it hard to stop fighting because so many things he/she says or does triggers you or you are simply still too upset by the relationship breakdown to discuss dispute resolution in a rational fashion, these are very normal feelings and reactions. In those circumstances you may find it helpful to enlist the help of a counsellor or psychologist to work through your feelings and work on a plan for dealing with your feelings through the ADR process. A lawyer can also help you discern between a dispute resolution option that is reasonable and worth accepting, even though your feelings don’t agree, and a settlement offer that is not reasonable.

When working out what is a reasonable outcome of your dispute, ie whether you should accept a settlement or not, it is important to calculate the likely cost of a court process so that you can factor that into your bottom line for settlement. There is a (usually large) financial cost to preparing and filing court documents and paying lawyers to attend court on your behalf. You may need to take time off work to attend court. You may have to spend a lot of time (and money) gathering together evidence or information for court and even if you represent yourself there will be a financial cost to litigation.

There is also an emotional and psychological cost to litigation that you need to consider. The other party will almost certainly include information in their documents that you consider untrue, that triggers you or is just plain unreasonable. The process can be lengthy and feel like it is never going to end. You can get a magistrate or judge on a bad day and feel like the whole process is a waste of time. Therefore, if you receive a settlement offer that is close to or within the reasonable range of outcomes at trial, then the cost to you of litigation is likely to exceed the benefits of proceeding through the court. In that scenario, regardless of how much you might want to punish the other party, keep the fight going or show everyone that you are right or that you have the moral high ground, it is probably not worth it. Even if the settlement is not within the reasonable range but close to it you may consider settling to avoid the emotional and psychological toll on you of ongoing litigation, especially if the other side is likely to use their power against you. Take your lawyer’s advice. Speak to family. Discuss the options with a counsellor to work out how your feelings and emotions may be interfering with rational decision making. In summary, do your best to make a sound decision.

If after going through that process you decide that you can’t agree with the settlement option put forward by the other side or the other side is not engaging in negotiation or ADR, then it is time to equip yourself for battle, and that will be the subject of my next blog on the topic of Litigation Battles.