Plain Guide to Litigation: Getting help


This Guide is intended to deal with litigation. But it is important to stress that there are other ways of resolving disputes. Most people are familiar with the idea of arbitration without realising that an arbitration is a bit like litigating in court. The arbiter takes the place of a judge but has to hear parties in a judicial way. Another traditional way of dealing with disputes is simply to agree that you would abide by the decision of a suitable independent person. You could agree that such a person would make such enquiry as they thought fit and then decide.

“ADR” refers to “alternative dispute resolution”. The best known method is probably mediation. This is quite a formal process where an independent third party helps contesting parties to reach agreement. That third party will not usually try to give advice. Their role is to help you fully to understand the other side’s position and to help you make a sound appraisal of the strengths and weaknesses of your own position. They may ask you searching questions to explore these points. They will help facilitate discussion. They will be looking for ways in which both sides can gain. To take an obvious example, a tenant might be prepared to pay higher rent if the landlord agreed to provide new equipment. Depending on the parties’ respective finances that might produce a deal which would not have been reached if the whole argument had been about rent. Various professional firms offer a mediation service. It may seem expensive in itself but, if it is successful, it will be cheaper than litigation. It will be quicker and more private. It is a process which leaves you in control of the detail of any settlement proposals. You are not committed to accepting such a third party’s decision. You are only bound if you actually reach an agreement which you are prepared to accept.

But in any event, with or without outside assistance, parties should always be on the look out for opportunities to discuss settlement. You should be aware that attitudes change during the litigation. Sometimes that is because of change of circumstances or the passage of time. Sometimes it is because the very process of litigation alerts the parties to the strengths and weaknesses of their own and their opponent’s cases. People may be frightened to be the first to suggest settlement. It can seem like a sign of weakness. Having an independent mediator can help avoid that problem. But, in practice, a proposal to discuss matters is simple common sense rather than any sign of weakness. It is stupid to go from start to finish of a litigation without any attempt to discuss settlement. It would be a disaster for a case to go the whole way just because both parties were frightened to open the discussion.

At risk of stating the obvious, one main difficulty about litigation is that the court award is usually “all or nothing”. The winner takes all – including expenses. Often a court can see that there may be quite a bit to be said on both sides. The court may think it possible to identify various possible compromises. But, it is not the task of the court to negotiate. It is obliged to reach a decision on the disputed issues. Even if a court has found it hard to reach a decision and, perhaps, has only reached it on a narrow margin, it cannot reflect that in the decision. If parties come to realise that the issue between them is not clear cut, they may be more than happy to settle for a share. They cannot do that without being prepared to talk.

Even if the whole case cannot be resolved by agreement or compromise, we stress again the need to agree as much as possible to limit the litigation to points of genuine importance. We conclude by repeating that even if agreement on points of substance proves impossible, the actual process of litigation should, ideally, be a collaboration between the two sides to try to identify, as clearly and narrowly as possible, the issues which they need to have determined by the court, and to find the most efficient way of allowing the court to deal with these issues. The Court and the Principal Clerk should be seen as partners in this enterprise.

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© 2011, Scottish Land Court