What drives litigation?

Why do people litigate?

There are lots of reasons to avoid getting into disputes with other people: it’s expensive, it’s risky and it’s time consuming. Litigation is a very backward-looking exercise and, litigators aside, very few people enjoy it. Most find it very stressful.

So why do parties get involved in litigation, and why do they behave so irrationally once they do? Why do commercial organisations that should be focused on profit engage in litigation when it would be commercially prudent to settle the dispute?

The answer is that, once parties are in a dispute, they are neither rational nor commercial. Instead, they are ruled by emotional and psychological factors that can be destructive, and extremely counterproductive to resolving the matter. If you can recognise what is driving the dispute, then you might have better insight into how to resolve it.

What happens when disputes escalate?

Often by the time parties consult lawyers, they are deeply entrenched in the dispute and that means the options for moving forward are more limited.

The longer a dispute remains unresolved, the greater the chance of it escalating. When it escalates, the following things typically happen:

• The parties change from light tactics such as persuasion and compromise efforts, to heavy tactics such as threats.
• The number of issues in the dispute increases.
• The complaints about the other party become more general as the relationship deteriorates.
• Other parties may get drawn into the dispute.
• The goal changes from finding a compromise to winning at all costs.

What are the roadblocks to resolving disputes?

Disputes don’t just involve money or commercial opportunities, but also:

• injury to feelings and self-esteem
• the need for retribution
• the need to be heard and vindicated
• the need to justify an earlier decision
• potential damage to career, professional standing and reputation
• strongly held beliefs and values about what is fair and equitable, and
• different perceptions and assumptions.

Whilst these feelings might be driving the parties into a dispute, it is sobering to understand that litigation and the court processes involved in it are not very effective at dealing with these underlying drivers. In fact, it can and frequently does make them worse.

You need to be able to shift your position, and work on the other party to shift his or her position, if you are going to have a good chance of reaching a settlement of the dispute. My job as a lawyer is to give you an objective perspective about the dispute and make sure you have realistic expectations about the likely outcome.