Most key decision makers in a business know what a good deal looks like but when it comes to a dispute they sometimes switch from ‘what’s a good deal look like?’ to ‘What are our rights?’. The second question can trigger a consultation with a lawyer but the answer to the first question is not necessarily dependant upon the answer to the second. If it were, parties would never negotiate to settlement before seeing lawyers yet such settlements occur all the time.

It can be easy to lose sight of commercial objectives when litigation gathers momentum taking parties on a road that’s difficult to get off. I frequently encounter parties who would rather not be spending time money and sleepless nights on litigation and who dread receiving every letter from their lawyer. A litigation lawyer will not infrequently hear, “It’s not personal but I hope I never see you again.” In other words, ‘I hope I don’t ever have to go through this again!’

When a party instructs lawyers to bring or defend a claim the lawyers are working within an adversarial system. They seek to understand the client’s case and the opponent’s case and they will work hard to gather evidence and muster legal argument and prepare submissions with a view to attempting to persuade a Judge at trial that based upon such evidence and law, the Judge must find in their client’s favour. But is this pursuing what is best for a client or is it pursuing the best outcome at trial? There can be an enormous difference.

Sometimes it is easier to blame the law or the legal process than our own judgement and decisions. There is no doubt that litigation is necessary for various reasons. However, the Courts repeatedly point out that it should be a last resort.

The law might be an “ass” but perhaps the question needs no answer if you try mediation as an alternative and pursue a good deal? Now that is common sense.