Litigation is generally thought of as the process of resolving rights-based disputes through the court system, from filing a lawsuit through arguments on legal motions, a discovery phase involving formal exchange of information, courtroom trial and appeal.

Litigation also encompasses administrative or regulatory processes for establishing legal rights and resolving disputes.

Even if you do not plan to be a litigator, some familiarity with the litigation process will help you advise clients on how best to avoid disputes regarding legal rights.

Many legal disputes are resolved through direct negotiation, often based on a lawyer’s advice, but without formally filing a claim to commence litigation. 

In fact, only a small percentage of litigated cases proceed through trial. Most are settled through negotiation, mediation, arbitration or other forms of alternative dispute resolution.

In mediation, a neutral mediator assists the parties’ efforts to reach a settlement, but does not have binding decision-making power. 

Arbitration is a relatively informal adjudicative process in which the arbitrator’s decision is usually binding.

In this article, we will go through more detailed explanations that will help you understand your legal rights better. 

What Is Litigation?

Litigation is a legal process defined by preparing and then presenting a case in court. A traditional lawsuit, for instance, is a form of litigation.

Litigation means you have to:

File a lawsuit against another person or party

• Prepare a case with your representatives or legal assistants

• Present your case details, including evidence, persuasive testimony, and more in court

• Wait for a verdict from a judge or jury, depending on the specifics of your case and the rules of evidence

 

Litigation is sometimes responsible for cases in which both parties are unwilling to negotiate to any degree. The rulings from a litigation process like a lawsuit’s verdict are legally binding and must be adhered to by both parties.

What Is Alternative Dispute Resolution?

Alternative dispute resolution is another type of legal process. Unlike litigation, it does not involve bringing a case to court.

Instead, alternative dispute resolution involves meeting with another party,  sometimes in the presence of mediators or negotiators acting as neutral third parties, to create a resolution that you and the other party both agree upon.

Alternative dispute resolution often reaches a swifter conclusion than litigation, but it requires compromise and negotiation in a way that litigation does not.

As well, it takes your legal issue outside the court system, where it can be dealt with in a timely manner.

Nevertheless, just as in litigation, the resolutions or agreements arrived at in ADR are legally binding. Both parties must sign documents attesting to their willingness to agree to the resolutions reached via ADR or face legal consequences.

To summarize, both litigation and alternative dispute resolution are means of reaching a legal resolution to a problem between yourself and another party.

However, litigation requires you to present a case in court and results in a legally binding verdict handed down by a judge or jury.

Alternative dispute resolution, on the other hand, does not require you to present a case in the same way, thereby allowing you and the other involved party to reach a compromise or resolution without having to first join the backlog of cases to be heard by a specific court.

Different Alternative Dispute Resolution Methods

There are technically several different, distinct versions of ADR available to the public.

You may wish to pursue one type of ADR or another depending on your needs, the circumstances of your case, and/or the desires of you and the other involved party.

Negotiation

The first major type of ADR is negotiation. Negotiation is the first attempt to resolve a dispute through legal means without escalating the matter to either mediation or arbitration.

Put simply, negotiation involves meeting with the other party to settle a dispute as a form of neutral evaluation. It’s informal and offers maximum flexibility and, as a result, comes with several advantages and disadvantages.

For example, you and the other involved party can set the rules for the negotiation, work together at the negotiation table, and independently decide what matters you will or will not compromise on.

However, this can also be a downside if you or the other party involved in the negotiation do not wish to compromise, as negotiation proceedings will then be short and ineffective as a result.

Negotiation may or may not involve a neutral third party. You can also bring legal experts to the negotiation to shore up your points or case. If you reach a resolution, you can sign legally binding documents with the other party to wrap up any issues in question.

Mediation

Mediation is the next level of alternative dispute resolution and, compared to litigation or arbitration, is still relatively informal in nature.

With the mediation process, you hire a neutral third-party decision-maker called the mediator.

The mediator is an individual trained for professional negotiation. Throughout mediation, your mediator will bring you and the opposing party together and help to work on an agreement or settlement that both of you find satisfactory. Mediation results in a binding decision that often works well in civil cases.

Mediation can be used for many different types of cases or legal disagreements. These include:

• Corporate disagreements, such as disputes between business partners

• Homeownership or land-related disagreements

• Injury disagreements, such as who is responsible for injury damages or medical payments

 

Like negotiation, mediation allows you and the other involved party to state which aspects of the matter you will or will not compromise on.

Unlike negotiation, the mediator will help guide you to an appropriate resolution and provide important legal counsel to ensure both parties understand the laws and/or regulations surrounding the issue at hand.

Should mediation fail, you may wish to escalate your legal proceedings to arbitration.

Arbitration

While slightly more formal than mediation, arbitration is still less formal than what occurs in a traditional court setting.

That said, it carries many similarities to normal court proceedings. Included among these is a limited discovery for key evidence, albeit with simplified evidence rules. For example, most arbitration proceedings do allow hearsay to be admitted as evidence, which is not the case in the vast majority of court trials or litigation.

Technically, there are several different types of arbitration processes:

• National arbitration, in which the arbitration meeting is covered by nation-specific rules

• International commercial arbitration, which is typically used for commercial or contractual relations between companies, buyers, and/or sellers in different states or countries

• Investor-state arbitration, which is only used in a small minority of cases

• Regardless, arbitration involves the presence of a neutral third party called an arbitrator. Like a mediator, an arbitrator sets guidelines for the ongoing negotiations and works to help both parties find an agreement that is satisfactory to both.

The arbitrator may also work with legal experts or representatives who may be called by one or both parties.

However, both sides must either agree on one arbitrator or select a committee of three, with each side typically receiving one arbitrator who may be “favorable” to their point of view.

In any case, arbitration theoretically results in a legally binding document that both parties agree to. Legally binding arbitration decisions may result in arbitration awards of money or other things.

When Is Litigation Appropriate?

As you can see, both litigation and ADR can be successful and beneficial legal approaches when settling a dispute. To maximize your chances of a successful outcome, you should know when to pursue litigation versus alternative dispute resolution.

Litigation can be an appropriate choice in several different scenarios:

1. The Opposing Party Isn’t Willing to Negotiate

If the opposing party in a legal dispute isn’t willing to negotiate or compromise with you on any level, litigation may be the only legal recourse available to you. Remember: Any form of ADR – be it negotiation, mediation, or arbitration – is contingent on you and the other party reaching an agreed-upon arrangement.

If the other party is not willing to compromise, your best chance at a successful outcome will likely require taking the case to court. Of course, this is also true if you are unwilling to negotiate or if there are too many nonnegotiable factors in the case at hand.

2. The Opposing Party Is at Fault for Damages

If the opposing party is at fault for any damages — whether economic, medical, or otherwise — you may wish to pursue litigation rather than negotiation.

For example, if you are severely injured in an auto accident and know that there is ample evidence that the at-fault party was negligent, litigation could allow you to receive more damages than you might receive from an ADR approach. Just remember that litigation is typically more time-consuming and expensive than ADR, which means its costs can eat into your final damages.

When Should You Pursue Alternative Dispute Resolution?

Just like litigation, there are circumstances in which you should pursue alternative dispute resolution over litigation. Common scenarios include but are not limited to:

1. You Want To Conclude Legal Proceedings Quickly

Say you want legal proceedings to conclude quickly, or you don’t want to spend months or potentially years in the legal system. If this sounds like you, then ADR is the way to go for court decisions and arbitration agreements. In large part this is because even if the evidence you have is overwhelming, litigation takes time.

In contrast, alternate dispute resolution methods often conclude in a matter of months, weeks, or even days when the parties are eager to negotiate and reach an amicable compromise. Naturally, this makes ADR less expensive on average than even the most straightforward of litigation proceedings.

2. The Opposing Party May Negotiate

Alternatively, ADR processes might be worthwhile if the opposing party seems willing to negotiate on legal matters. Again, because ADR is usually cheaper and faster, don’t discount the value of willingness to negotiate on behalf of your legal rival.

In many cases, you can both walk away with more money or a satisfactory outcome if the other party is open to compromise or negotiation on important points.

3. You Are Partly At-Fault

You may, however, wish to pursue ADR if you are partly at fault for damages or a legal incident. If this is the case, you may not want to take your issue to court because you could be found more guilty or at fault than you currently are.

If you and the other party are both partially at fault for damages, you can reach an amicable resolution with the assistance of a neutral third party like a mediator or arbitrator.

Taking things to ADR rather than court protects you from having to pay more in damages than you might otherwise. If you aren’t sure if this is a possibility, contact legal professionals right away.

Khairallah advocates and consultants can guide what path to choose in order to proceed with your case – depending on the legal situation. And Lawyer Jouslin Khairallah, has been representing all cases that require her to be present at the court or negotiate in the behalf of the clients. 

You can benefit from the free consultation for 30-min, and get the help you need from the best lawyers in dubai, whether you’re in the region or not!