Nothing in this article represents legal advice*
The thought of suing someone or being sued can be scary; there are so many reasons why you may wish to sue someone, perhaps you are owed money, the other party has breached the contract, or goods and services you have paid for are not as described. You may be claiming for professional or clinical negligence or even personal injury after suffering an accident; the list is endless.
If we view the methods of resolving a dispute on a spectrum, we find negotiation at one end and litigation (going to court) at the other extreme. There is no ‘one size fits all’ approach to resolving an issue; some people can talk it through and reach agreement quickly, whereas others need a judge to decide for them. Negotiation represents the quickest and cheapest way of solving a legal problem; litigation is more costly and timeconsuming. Many people think that the more expensive the claim, the more likely it is that it needs a judge to decide it, this is not always the case! Some applications for vast sums of money can be settled quickly by negotiation whereas other, of low value, have to go to court due to complex points of law or lots of evidence.
If you are the person considering legal action there are a few things to think through:
Do you understand the situation?
It is surprising how often I hear a claimant doesn’t know the reason why a defendant has failed to carry out an obligation. Finding out the reason behind the failure is a huge step in resolving the issue. Consider a scenario where Charles has failed to pay Fiona, his builder after she completed some work for him. Simply asking if there is a problem can avoid a lot of hassle. For example:
“Hi Charles, the invoice for my work was due yesterday, can you tell me when I can expect it? Please let me know if there is a problem, thank you, Fiona”
If there is a problem, can you negotiate?
Let’s imagine Charles replies to Fiona saying:
“Hi, there are problems with the render on the walls, I’m not happy to pay as it’s just not right”
So many options flow from this, Fiona may look at the work and put it right before she is paid, or perhaps, on inspection, she feels there is nothing wrong with the work to warrant Charles’s refusal to pay. At this stage, there are still areas for negotiation.
If we can’t agree should I take Charles to court?
So many people think the next, or even first step, is to sue someone who has done you wrong, whether or not this is wise is dependant on many factors.
A benefit of suing someone is that when they receive the claim (formal court paperwork) it may make them resolve the problem. However, this does not always work and sometimes it makes the other person ‘dig-in’ then you are left with the choice of continuing with a legal action or dropping it entirely.
Some negatives associated with suing someone is that it costs money just to issue the claim, specialist legal advice (lawyers) cost money and, crucially, if you lose at court you generally have to pay the other sides fees.
Do I need a lawyer?
Whether to get a lawyer is a very important decision, as ever, it depends. The earlier you are in a dispute the less likely you are to need a lawyer – it would be common to try to negotiate directly with the other party without a lawyer, however, if the problem cannot be negotiated engaging a lawyer can become more important.
When you are faced with a problem it can be very difficult to see things from the perspective of the other party, a lawyer, who spends many years undergoing specialist training, can save a great deal of time and money by giving early objective advice and explaining your prospects of success.
As I said earlier in this piece, dispute resolution is a spectrum, there are so many options between negotiation and trial, it really does pay dividends to think about what is best for you. The most appropriate option for you will depend on the individual circumstances; I would always recommend you seek the advice of a solicitor if in doubt.
Mediation: an alternative to court?
I am keen to highlight mediation as an intermediate option that fits nicely between negotiation and court proceedings.
Mediation is a form of ADR that involves a neutral third person facilitating the parties to come to a settlement by agreement. It is highly effective; data gathered over the past 10 years illustrates that over 90% of mediations result in a successful settlement. Many mediators are lawyers (solicitors or barristers) and are highly trained in conflict resolution. They are able to assist parties to see past the emotional part of a dispute and to concentrate on what really matters to them – it is not always money, sometimes people just want an apology and an acknowledgement that they have been wronged.
Parties can settle their dispute at any stage in proceedings; sometimes this occurs before a claim is issued and sometimes right at the door of the court itself. What is clear is that it will save more money and time settling early in the dispute. Mediation can now take place with a minimum of fuss online, for more information, follow the link to online dispute resolution.
The courts do not force people to settle, though it appears we are edging closer to court-mandated mediation. It is also essential to understand that the court can penalise a party for unreasonably refusing to mediate; for more information on the cost consequences of failing to consider ADR see my article on the subject here.
*Disclaimer: This article forms part of my SEO campaign, essentially its aim is to highlight to you, if you are considering suing someone, or are indeed being sued, the alternatives to legal action. Nothing in this piece constitutes legal advice.