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Litigation is the process lawyers engage in to prepare and take a case to court (or an arbitrator) for a decision.  The role of the attorney is to build their own case and to find ways to discredit the other side’s case. A big part of this is gathering information – obtaining documents, interviewing witnesses, and hiring experts. This may include “discovery”, which means getting information from the other side through interrogatories (written questions), depositions (oral questions and answers recorded by a court reporter), and requests for production and/or subpoenas (requiring the turning over of documents).

Litigation also involves preparing legal arguments and evidence for presentation to the court, and preparing both to present testimony supporting their client’s position and to cross examine witnesses for the other side. In addition to trial, litigation will often include smaller hearings on various motions as the case moves along, such as for temporary relief (decisions as to how the parties will continue to operate until they can get to a final decision at trial).

However, most litigation cases never get as far as trial. Typically, once the lawyers have built their cases and had a chance to evaluate the competing case of the other side, they will be able to negotiate a settlement based on what they believe the most likely outcome at trial would be. Often this settlement process is assisted by an evaluative mediator at a settlement conference. The role of the evaluative mediator is to give a neutral and educated opinion as to the likely outcome at trial, and to help the parties come to a resolution they can both live with (maybe with some arm twisting).

While litigation usually results in a negotiated settlement, it relies on the “trial by fire” test of what a court would do. It treats the two sides as adversaries in a contest.

This is different from other dispute resolution methods, such as facilitative mediation or collaboration, that are aimed at helping clients craft solutions that are satisfactory to both. In these types of processes, the emphasis is not on what the court would do, but rather what do the parties want to do – what helps them best meet their goals.