Do I Have To Go to Court?

Most legal disputes are resolved without even having to commence a court action. Even where court actions are commenced, over 90% settle without having to go to trial.

In fact, most disputes are settled by negotiation. Some people wrongly assume taking a case to a trial lawyer will mean going to trial, but an experienced trial lawyer will have more experience settling disputes than going to trial.

Mediation has become increasingly popular in recent years. Mediation is another form of negotiation, involving a third party, the mediator. The mediator acts to facilitate settlement discussions and tries to ensure that both parties hear and appreciate the other side’s position. However, mediators are not judges and will not impose a settlement on the parties.

Lawyers can and do attend mediations with clients, although this is not always the case. People often feel they’d rather try it on their own, but there are risks: they may not be fully informed about their legal rights and obligations, and one of the parties may be a more dominant personality, which may leave the other party vulnerable. The second concern commonly arises in family law situations.

Many people prefer negotiations and/or mediations because they can decide what they’ll agree to and do not lose control. Any experienced trial lawyer will say results at trial can’t be guaranteed and judges sometimes make mistakes. A trial will probably also be very expensive even if you win.

However, negotiations and mediations only work where both sides are willing to make reasonable compromises.

Arbitrations are more properly seen as an alternative to a trial. They are usually much more formal than mediations and the procedures are similar to those followed in court cases. Finally, arbitrations produce a binding result.

In practice, arbitrations are rare and are only used for particular types of disputes, typically where specialized knowledge of the particular type of businesses involved is required, which the arbitrator will possess.

Negotiations and mediations do not exclude the possibility of having to go to court, and they can be tried at any stage of a dispute. Cases are sometimes settled “on the courthouse steps” or during a trial. All options should be considered.

In the event negotiation and mediation fail, court action may be required. For more information about court actions, see the article Court Actions.

This article is for general information only, and should not be relied on as legal advice in any particular case. Consult a lawyer for advice on your case.

By Patrick McMurchy