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How is litigation different fr...

How is litigation different from any out of court processes like Collaborative Law and Mediation?

  • November 20, 2017

Litigation is different from most out-of-court processes (like mediation) in several respects.  Perhaps most importantly, unless the parties to an out-of-court process agree to have the out-of-court resolution be legally binding on them, processes such as mediation are often not binding.  Therefore, people can proceed through a process like mediation, and then decide at the end of it that they don’t like the agreement proposed by the mediator.  And again, unless the parties have agreed in advance to be legally bound by the decision, they won’t be bound, and the dispute will continue.

Litigation puts a case into the court system where principles of law are applied to the particular facts of the case, and the outcome—whether by judge or by jury—is binding on all the parties to the case.  Although a decision or judgment may often be appealed, eventually there is an end to the appellate process, too, and the decision is final and binding.

Litigation is different from most other out-of-court processes in its costs and expenses.  Quite simply, and almost without exception, litigation is more expensive than processes such as mediation and arbitration.

Litigation is more formal than out-of-court processes such as mediation or arbitration.  Litigation is guided by rules of law, including procedural rules, and follows a path that is overseen by a judge, while out-of-court processes are usually less formal and seek to be more “friendly” than litigation.