Opting to use the legal system to deal with a dispute will have an impact on your time, money, stress levels and future relationship with others. Solving problems becomes easier when you have good accurate information about what your options could mean in practice.
This short guide draws on my experience as a solicitor and a mediator. It is designed to clarify what information you might gain from consulting a suitably experienced lawyer about the reality of the Court process. Lawyers can explain your legal options and the risks and implications but they can’t decide what you should do to solve a dispute. Ultimately how you choose to respond to a conflict remains your decision.
What to expect from a Lawyer
An experienced lawyer will usually listen to your description of the problem and ask you what you are hoping to achieve.
Lawyers will give you their professional advice and opinion about your legal options. A lawyer can also take steps on your behalf if you want to pursue legal action but, in England & Wales that is subject to a number of professional duties including;
- Acting in the best interests of their client (which is not the same as doing everything a client wants).
- Not misleading the Court or their opponent.
- Attempting to resolve disputes as early as possible including explaining and encouraging clients to use alternative dispute resolution methods such as Mediation where appropriate.
If your lawyer advises against Mediation consider asking for an explanation of why your case isn’t suitable because you will have to live with the impact of litigation. In some cases you may “win” at Court but still be ordered to contribute to the other person’s costs if the Judge believes you should have tried mediation.
The problem of predicting outcomes
Academic research shows that legal and other experts are good at giving information about average outcomes for the types of problem they routinely deal with. Lawyers are trained to advise about the factors that influence the chances of a positive or negative result in Court. However, for a variety of reasons it is often not possible to make early, accurate predictions about the likely outcome for an individual case. In addition, studies show that everyone has a natural tendency to focus on information that confirms their beliefs. This means that when people seek advice and information they are at risk of placing more importance on the things that confirm their existing viewpoint and may pay less attention to anything which contradicts that view.
When consulting a lawyer it may be wise to ask “how does this sort of case usually turn out” not just “what are my chances of getting what I want”, and to keep in mind that a 60% chance of success is also a 40% chance of losing.
Preparing to seek advice
- Find an adviser and check they have relevant experience. The Law Society and Bar Council have information about how to find accredited specialists. There is information about Legal Aid on the .gov website.
- Save time and expense by gathering and organising your paperwork and evidence before your appointment.
- Don’t write on or mark original documents and do make extra copies of any essential items that you must not lose.
- Help your lawyer understand the situation by taking time to prepare a short history of the dispute including who is involved, your relationship to them, any important events, what in practical terms you are arguing about, and also what you are hoping to avoid and achieve in order of importance to you.
- Be prepared to listen to advice on all the possible options, risks and outcomes.
- Preparing a list of questions in advance can help you remember to ask them.
- Consider asking for advice to be confirmed in writing. This can help you remember and reflect on what has been discussed; your lawyer might also want to revise their initial advice after considering your situation and documents in more detail.
Key Information – Some useful questions to ask a Lawyer
General
- What might happen if I do nothing?
- What are the best and worst possible outcomes if either side uses the Courts?
- What other options are available without going to Court?
- Are there any time limits if my opponent or I want to take the case to Court?
Assessing Time Commitment
- What steps are each side supposed to take before starting Court proceedings and how long could that take?
- How much time will I need to set aside for dealing with my legal case?
- What information will I need to provide to the Court & what happens if I can’t?
- How long could it take to get a hearing once the case is started in Court?
- What sorts of things might my opponent do to prolong or shorten the case.
How Does the Judge Decide?
- If the case goes to trial, what legal test does the Judge apply to decide these sorts of dispute?
- What sort of evidence would the Judge think is relevant and why?
- Does the Judge consult anyone else?
- Is the Judge bound to follow expert advice?
- What does the Judge do if it’s just my opponent’s word against mine?
- What orders can the Judge make in this type of case and which ones are most commonly made?
What Will You Experience As A Litigant?
- Will either party be able to tell the other what they think of them?
- Would I have to speak in Court, what will it be like?
- Will anyone else be able to find out what has been said in Court or that the Court has made a decision?
Adviser’s Experience
- What percentage of these cases do you manage to settle without a hearing?
- What are the steps you usually take in this sort of case?
- How will you keep me informed about progress?
- Is there anything about my case that makes you think it could go to trial?
Costs Risk
- What do you charge and what arrangements will I need to make to pay your bill?
- Will there be any extra charges for barristers, Court, and expert fees?
- How much could it cost in total ?
- If I win, will my opponent have to pay all of my legal bills?
- If I lose how much can I expect to pay towards my opponent’s bill?
- What happens if I win on the day but my opponent wants to appeal?
- What happens if my opponent ignores the judgement or has no money?
Explore All Options
Consider your alternatives
It’s easy to get trapped in thoughts of “either/or”, the choice seems binary; do you go to Court or give up? But there are often are more choices when everyone takes the time to explore carefully what the problem is before choosing a solution. Mediation can help everyone do that and it’s confidential so it doesn’t harm anyone’s chances in Court if the problem isn’t resolved.
Lawyers can give advice during mediation
If you want to try Mediation but are concerned about your legal position or how to make an agreement binding, your lawyer may be able to attend mediation with you or be available for you to telephone or email them for advice either during or between mediation meetings.
Other options
If you do not feel able to try Mediation you may want to consider other alternatives to the legal route, especially if maintaining a relationship with the other party is important to you. Time To Talk Conflict Coaching from Minerva Mediation could give you the support you need.
