Litigation – a roulette wheel for commercial gamblers!

Key Learning

The history of reported court cases between parties who litigate their commercial disputes to trial, each represented by confident teams of lawyers and advisers, showcase fortunate winners and unhappy losers.  Therefore court adjudication of complex disputes can be a game of chance between gamblers with no certainty of victory.

The Problem – Litigation leads to uncertain and binary outcomes

Court decided commercial disputes can lead to binary outcomes, generally involving winners and losers, at trial and on appeal. Litigation to trial and judgment, will not resolve legal disputes to the satisfaction of all parties involved. 

Typically, litigating parties will receive legal advice that their claim, or defence to an action, will have “reasonable prospects” of success, based on “potentially provable facts”, and an “arguable basis in law” (the legal test).  The question arises whether such limited assessment is sufficient for claimants (or defendants) to engage in litigation and thereby incur significant costs, for what may be no more than a “wager”.

Parties will also be advised of the risks of litigation and uncertainty of outcome, and that if unsuccessful, they may be required to pay the costs of the successful party. The conundrum is to weigh the prospects of success with the risk of losing. With hindsight, court judgments and the determination of legal entitlements one way or the other, will often be seen as no more predictable than the spin of a roulette wheel, where the ball randomly falls to the red or the black, to determine winners and losers.

The Solution

When litigation and legal disputes can’t be avoided, or quickly resolved, they need to be carefully planned for, managed to acceptable expectations, and their likely financial outcomes predicted, based on all relevant data and information available.

Also, a clear and achievable strategy for resolution needs be developed, documented and implemented. The role of comprehensive data and intelligence gathering and its analysis to predict possible and probable outcomes, to better inform decision makers of preferred solutions, is essential, if non-negotiable, for prudent dispute management.

In every dispute a party’s goal must be to use predictive techniques to assess what settlement value may look like, and to optimise organisation and stakeholder value.

Solve Global provides predictive outcome analysis, value assessment and solutions options for clients seeking high value solutions to their complex disputes.