Understanding Negotiation & Litigation

If you imagine a legal problem as a big, tight knot, then you can think of Negotiation and Litigation as two ways of undoing the knot. Negotiation is like cutting through the knot, and Litigation is like unwinding it strand by strand.

Negotiation, by definition, results in a solution that neither party is entirely pleased with. It is often the least-bad option, leaving both parties feeling very dissatisfied. But it at least ensures that each party gets some of what they want. As when you cut through a knotted rope, there are frayed edges and no neat result.

Litigation seeks to untie every inch of the knot. As with undoing a knot, it can take a huge amount of time to figure out which piece needs to go where, and a lot of effort to pull them all apart. The procedures of litigation put every piece of the puzzle under scrutiny so that every fact is examined and every question is answered. And as a knot may involve many strands and tangles, a legal conflict may involve many facts and questions.

Litigation generally results in an all-or-nothing result — there is a winner and a loser on each question. But even for the winner, it can take a huge amount of time and money to reach the victory.

The most important thing to know about Litigation is that the courts work very slowly, as a result of inadequate funding and staffing. An extension of a deadline may put the schedule back by a month or two. The court may take several months to deliver a decision on a simple request or on a five-minute hearing. It is very difficult to prepare yourself for this fact, but the result of it is that almost any conflict that is contested in court is likely to take at least a year to reach its result, and possibly quite a bit longer.

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