Sat, 06/10/2018 - 15:27 By razarashid1

Civil Litigation

Litigation is used to resolve conflicts in civil and criminal justice systems around the globe. It is a method of dealing with legal issues that require a great deal of time, money and emotional investment. 

Civil litigation begins with the pre-trial phase, where parties engage to obtain documentary evidence from each other, often referred to as disclosure, and assess the merits of their respective claims. This is followed by a lengthy case preparation protocol which involves legal representatives compiling evidence according to prescribed rules and directions. 
Once a trial begins, the evidence is presented by each party, and a binding judgment is delivered by the judge. The judgment, however, provides little guarantee in terms of financial recovery on part of the successful party, as defendants or claimants often evade the consequences of adverse decisions by winding up companies or assets and declaring bankruptcy. 


In comparison to litigation, mediation provides a more streamlined method for conflict resolution. Once the decision to use mediation is reached, parties can essentially begin the process at the next convenient timing. Unlike litigation, mediation proceedings are not embroiled in evidential convolutions or protocols, nor are they dominated by counsels making submissions to a mediator. Since even the most complex disputes can be resolved within one or two days of mediation, both the time and financial costs are reduced significantly. 

Furthermore, the mediation process is geared towards reaching a mutually beneficial settlement for both parties. The third-party mediator is merely there to facilitate the discussion and does not assume the role of a decision maker, which is retained by both parties. Participants are allowed to engage directly with each other, with or without the presence of counsels, and indulge in a frank and candid discussion on the issues. This personalised nature of the engagement whereby parties can put their grievances to each other and be the judges in their own dispute means that long-term business relationships can be preserved. Settlements that consist of unusual remedies, such as an apology or an explanation are not uncommon and further allow parties to continue working together in the future. 

Mediation also provides a different kind of resolution than litigation. As mentioned, a court of law is empowered to pass an order that one or both of the parties need to comply with within a specified time period. Since these orders and judgments are not consented to by the parties, enforcement proceedings are often necessary to compel performance. Parties may be especially reluctant to abide by rulings that they deem unfair or arbitrary. In such a scenario, it may be a long time before the successful party is actually able to benefit from the remedies awarded or recover costs of proceedings. 

The fact that any mediated settlement is subject to agreement by both parties may be a cause to argue that parties are more likely to adhere to the terms of a settlement. Parties only agree to what they deem is fair and reasonable, therefore the need for enforcement proceedings is reduced significantly. This adds to the overall speed of process whereby not only is the dispute itself expeditiously resolved, but the resolution is swiftly followed by performance. As a means of safeguarding the interests of both parties, however, mediated settlements are recorded in writing. Therefore, in the rare circumstance in which the need for enforcement actually arises, the settlement can usually be enforced as a contract. 

Mediation is also a significantly cheaper alternative to litigation. The cost of litigation far outweighs any other form of dispute resolution. Rules of evidence in litigation require the full involvement of legal representatives in the collection and presentation of evidence. During litigation, both parties will have incurred significant costs before a single submission is made. Mediation, on the other hand, may even be conducted without the involvement of legal counsel. Even where legal counsel is present, he or she is merely required to assist parties in the course of the mediation rather than collect evidence or make representations to a judge or an arbitrator. The limited capacity in which he or she contributes to the process ensures that costs remain reasonable. Moreover, mediation requires little spending on behalf of either party in the pre-mediation phase of the procedure. 


These factors combined with the 85% success rate mediation boasts highlight the need for businesses and individuals to shun the traditional practice of litigation and adopt efficient and cost-effective means of conflict resolution. This will benefit not only individuals businesses and persons but the civil justice system as a whole by relieving the burden of litigation on the courts.