Separating Emotion from Litigation
Most grievances are likely to be subjective to some degree. If you are considering going to court to resolve an issue, remaining emotionally involved can drive up costs, cloud judgments, effect the likelihood of success and take a personal toll down the line.
Keeping a level head throughout what can be a difficult process makes for better decisions and better outcomes. It is worth taking stock of what you want to achieve, what the facts of the situation are and how long it will take to get there.
Below are some of the dangers of getting not separating emotion from litigation:
A common problem with separating emotion from litigation is the expectation of the value of a claim, the length of time the process will take or the satisfaction you receive from the final decision.
Whilst a few cases will result in a public declaration of wrongdoing, most civil matters resolve without any fanfare but instead with an amount of money being paid from one party to another or an order for some other sort of restitution.
Consider what you have lost. Whether it be work, money, reputation, time, or property you have lost, you need a clear idea of what you are looking to receive in return. Perhaps you want a public admission of fault, or an apology. It could be payment of outstanding debts, or the demolition of an illegal building. Whatever it is you feel is owed to you, it will need to be clearly evidenced.
Emotive disputes can raise costs beyond what is commercially viable. If your litigation becomes too personal, it is easy to lose sight of the costs and that can lead to disappointment when the costs near or exceed the value of your original claim.
There can be a point when one party has committed so much to their dispute that, even when it is sensible to walk away, the urge is to continue in hope of mitigating those costs.
Memory of events can be unreliable
Like re-telling a good story, your tale of injustice can take on a life of its own and, the more you have to repeat yourself, the better it may sound.
Emotive situations can be highly subjective from memory and one version of events may be suddenly contradicted by evidence when you have already gone on record officially.
Emotional disputes can be very difficult to step away from, even if there is nothing to gain. If two parties develop a real enmity for one another or if previous history has coloured the events in question, separating emotion from litigation gets harder.
Revisiting old grudges, unrelated to the matters at hand, can lead to a loss of focus. Even when you are paying for your solicitors to reply, the urge to bite a hook, baited to get a response, can be harder to resist than one might expect. However, this often serves to drive up costs and make one or both of the parties seem more unreasonable.
Mistakes under pressure
Films and television with courtroom scenes often involve a witness cracking under the expert scrutiny of a maverick lawyer. The truth is less dramatic. An emotional litigant is less likely to have the facts they need available under scrutiny. The effect of a number of small errors can be you sound less reliable in general, even if you are in the right.
Before embarking on litigation, consider these aspects to help keep you in control of what is going on, increase your chances of success and keep costs down:
Work out realistic objectives and budgets.
Solicitors help to work out what damages you have incurred and to make them realistic, rather than what you feel you are owed.
Talk to your solicitor about costs and try to understand the cost to get you to each stage. Work out a budget for each one, then stick to it. You may have to be flexible as the matter progresses but if the early costs are higher than you want and it looks like they may continue to rise, think carefully about cutting your losses.
Separating emotion from litigation is important when you consider the quantum of the costs versus the possible outcome. Your solicitors should be keeping you updated on the figures so considering the numbers rather than the principles at stake makes it easier to manage your case.
Keep correspondence organised and keep notes
Having clear records of conversations and keeping email correspondence in order makes it easier not to lose track of what has actually been said, rather than the way in which it has been taken.
Try separating emotion from litigation if you have to speak to someone on the telephone. Keep notes of what you are discussing whilst you are on the telephone – it will help keep you calm and collected. Send an email confirming what you have discussed soon after.
Consider your responses
Keep in mind the overall aim of your litigation. Keep focused on those issues. Separating emotion from litigation helps if other parties raise other itchy issues. Try to remember that is not what you are spending money resolving. Point out the issue is not part of your litigation and move on to the next point. Your solicitor should be keeping the case on track. If they advise you not to engage with a particular issue, try to take their advice – it is only for your benefit.
Try to ignore points designed to distract you or the courts from the key points you are disputing and jot down the points that require answers whilst examining correspondence. Then you can use those notes to reply, steering clear of how you may feel about it. Separating emotion from litigation at this stage will change how the other side respond. Try to resist the urge to anything in to exacerbate the other side unless it will benefit you.
Study the facts of your case and try to remain objective. Write notes and go back to them collecting evidence for each part. Try to make sure you have a solid understanding of all the history surrounding the dispute, especially the parts that may be open to misinterpretation. If you have all the answers to hand when dealing with the other side it limits the possibility of you saying something that may undermine your argument later. There is no penalty for taking the time to check yourself before you answer a question in correspondence
Look at alternatives.
If costs look too high, it may be more effective to look at an alternative form of dispute resolution. It may be better to get something quickly than risk winning nothing later.
Mediation is significantly less expensive and involves less time and arbitration is binding so fulfils many of the reasons an individual may look to a court resolution.
Making an offer to settle an emotive dispute can be very hard, but not having to bear the lost time and costs of a dispute in the courts, or a mediator, makes a massive difference to the quantum of costs and possibly your quality of life.
If it makes commercial sense, in many cases it will be the best decision even if your pride takes a hit.
Be prepared to compromise.
The quickest way to resolve a matter is almost always to compromise. Sometimes it may be galling to do so but you may well find it equally so to continue if you spend more on litigation that you would receive in mediation. The price of a swift resolution is very hard to quantify but the ability to look dispassionately at what you have to gain and what it will cost is certainly a valuable asset in resolving a dispute.