When you ask, how will this litigation unfold, how often have you heard: ’it depends on the dispute’ – far too often. It’s pervasive and unhelpful. The irony is that almost every commercial dispute follows the same rhythm and requires the same steps. Understanding and being well informed about the stages of litigation is critical to achieving the best possible outcomes.
There are 6 clear stages:
- Understanding: this critical first phase is about understanding your objectives, constraints and resources, understanding the key facts and issues in dispute; identifying the body of relevant materials and information, and attempting to understand the objectives and narrative of all other parties to the dispute. Skip this phase (and the assessment phase), and all other stages are likely to be ineffective and far more costly than they should be;
- Assessment: the objective of this phase is to translate the grievance into the legal pathways to resolution by identifying the legal issues, assessing the legal risks and impediments to achieving your objectives, and determining the strategy to improve the likelihood of achieving your reasonable objectives;
- Articulation and disclosure: the objective of this phase is to ensure all other parties have a very clear understanding of your position and, equally, you are able to understand the position put by all other parties. This phase is about understanding, persuasion, and disclosing the information necessary to allow all parties to make informed decisions about resolution;
- Negotiation: the goal of this phase is to achieve your reasonable objectives through negotiated resolution. The vehicle may be a structured mediation, it may be a process of negotiation. The objective is to ensure you are well positioned to make an informed commercial decision that appropriately balances your objectives with the risks and cost of proceeding. Importantly, this phase is alive and present at every stage of a commercial dispute, it is not a one-off event;
- Determination: this is the trial phase. This is the point at which you are seeking the determination of a Court, Tribunal or Arbitrator. This phase is all about planning, preparation, and execution to persuade the decision maker to give you the best possible outcome. The success of this phase will depend on the rigour and effectiveness of all earlier stages – it should represent the consolidation and culmination of the work undertaken at each earlier stage, not duplication and re-casting. Every stage in the litigation process is ultimately about effectively positioning yourself for the determination phase (and doing it so well that you probably avoid this step);
- Post-determination: this is the wrap up phase, dealing with the consequences of judgments, enforcement, costs and lessons learned to help avoid or better position for future disputes.
Two important things to remember.
First, the stages are not linear. While there is a logical linear progression in understanding, assessment and articulation, the key is to ensure that each time you learn and process new information, you use each of the different stages to understand how the information can help advance your objectives.
Second, do not think about the life cycle in the litigation process as the procedural steps mandated by a Court, e.g. pleadings, discovery, evidence, trial. You will have far greater understanding of the litigation process and be better armed to make informed decisions if you think about each stage in terms of what you should expect to achieve and how it advances your objectives. For example, pleadings are about the objective of ensuring the other parties understand your position, discovery is about disclosure, making sure all parties have the information they need to make informed decisions…
If you understand the litigation process in simple terms, with a focus on the purpose of each stage of the process and how it can help you realise your objectives, you can be armed with the understanding and information you need to become an engaged participant, working collaboratively with your lawyer to achieve the best possible outcome.
Understanding the 6 stages of commercial dispute resolution empowers you to understand and take responsibility for achieving the best possible outcomes – it’s your dispute after all.
To begin the process of resolving your commercial dispute, contact Aptum.