Litigation is a word that many people have heard of without fully understanding until they are involved with some sort of legal issue.
Litigation describes the process of bringing a problem to the court and asking a judge to decide the outcome. How does litigation work?
The process is controlled by the court and people must comply with the court’s rules. That means producing evidence, making arguments, and, ultimately, complying with the judge’s decision.
The three most common events at court are mentions, interim hearings and trials.
- Mentions are generally procedural. The parties tell the court the issues and the court makes orders to manage the matter towards trial. Usually, the court does not schedule enough time for argument for mentions.
- Interim hearings are where the parties have time to argue over temporary issues. For instance, how the children will be cared for leading up to trial, or whether one person should be stopped from selling assets before trial. Interim hearings produce temporary decisions designed to preserve or progress the matter to trial.
- Trials are where the parties present and scrutinise one another’s final evidence before the court. Trials allow a judge to make a final decision on the issues.
“Litigation is neither good nor bad – it is a tool that helps to guarantee a finish line”
Litigation is neither good nor bad – it is a tool that helps to guarantee a finish line. It is the most formal process for resolving disagreements.
Is litigation for me?
Some people thrive in litigation. It requires a particular mindset that suits the decisive and goal driven.
Litigation is adversarial. Both parties present their interpretation of the facts and law. The most persuasive party, depending on the difficulty of their position, achieves the best outcome. It has a winner and a loser.
While equally resourced parties should achieve equality of process, parties are rarely equally resourced.
Because its rules and procedures are strict, litigation is punishing of those who do not fully engage with it. It also tends to be destructive for parties who have struggled to have some personal agency during a relationship. Often either they have the authority they are not used to and use it unwisely, or they are unable to confront the other party with autonomy in an adversarial setting.
Litigation’s rules are not always accessible to the untrained. It is a process developed by lawyers in which lawyers are trained to operate. We think the unrepresented are at risk.