Litigation is currently the prevalent method of resolving disputes through court processes and detailed rules of civil procedure, for parties in a dispute that have not agreed to use voluntary alternative dispute resolution methods.

Litigation is a non-voluntary process where a named party to a lawsuit must appear before the court. A primary benefit of litigation is the ability of an aggrieved or injured party to force another party to assume financial responsibility for injuries or damages the other party may have caused. Theories of damage recovery are generally based on either breach of contract or on tort principles (failure to meet a societal standard of conduct).

Benefits of Litigation

There are a number of reasons to use litigation to resolve disputes:

• Jury Decision. Preferences for a trial by jury frequently revolve around a jury’s anticipated attitude about the parties, the claims or the emotional content of the dispute.



• Legal Precedent. Controlling legal precedent should be applied by the judge. A certainty of existing statutory and case law allows parties some idea of where they stand.



• Right of Appeal. Litigation offers the right of appeal, although only in the event controlling law is not followed. Determinations of fact are generally not subject to appeal. While appeal rights are often stated as a reason to prefer litigation over arbitration, statistically one half of one percent of cases filed are appealed.



• Tradition. Rules of evidence and civil procedure provide a predictable and familiar framework for litigation attorneys.



• Motions. Legal motions can be used to dismiss portions of the legal issues prior to trial. This is a time and cost-reduction technique that narrows the focus of the dispute prior to the actual trial.



• Alternative Dispute Resolution. Many courts (and many contracts) require mandatory mediation or arbitration of disputes under a certain dollar amount (generally less than $50,000) prior to trial. Court rules are designed to encourage settlement prior to trial. Mediation and arbitration offer both the court and the parties a less costly alternative to a trial.

Alternatives to Litigation

The detailed civil procedures and standards of practice by litigation attorneys have resulted in a litigation process that most participants consider expensive, time-consuming and controlled by attorneys, rather than the parties. For these reasons alternative dispute resolution processes such as mediation and arbitration that give more control to the parties have increased in use. These alternatives to litigation are voluntary and are generally preferred over litigation by disputing parties.

Developments in the Litigation Process

In addition to use of arbitration and mediation by the courts, settlement counsel with a primary responsibility to develop early settlement opportunities, are increasingly being used. Settlement counsel provide a benefit of separating the litigation focus of the litigation team from the early resolution focus of settlement counsel. Insurance claims managers can often play the role of settlement counsel or advocate.

Customary project planning, budgeting, scheduling and client involvement in priorities and strategy development are being applied to litigators to achieve better responsiveness, increased efficiencies and more cost effective results.

Litigation is very effective in resolving disputes when a party refuses to recognize or respond to a dispute or refuses to utilize alternative dispute resolution processes. Disputing parties will come out ahead in preserving relationships, controlling outcomes and reducing legal costs through the use of alternatives to litigation.