Reflections on the conduct of litigation given that most cases settle - eventually.

Speaker: Gerry Moynihan KC

The conduct of a 6 month proof and 3 week reclaiming motion has caused me to reflect on the purpose of litigation if most cases do, eventually, settle. The obvious consideration is that the costs of litigation are prohibitive, certainly in the Court of Session.  

At least at the outset litigation can be a necessary phase in what appears to be a war but experience tells us that the vast majority will settle. What implications does this have for the proper conduct of litigation in light of the deeper psychological suspicion that to moot settlement is to convey weakness? Alternative Dispute Resolution procedures exist, including mediation, but these can be a costly addition that simply absolves one lawyer involved in the litigation of the responsibility of picking up the phone and starting a conversation.

There is no universal solution but at least we can start by acknowledging the problem and reviewing the conduct of litigation in that light.