Why Litigation Isn’t The Best Form of Dispute Resolution
By Adeoye Moronkola
The first exposure that idealises or deglamorises the legal profession to the non legal mind is litigation. This could be said to be true because it is that aspect of law that largely deals with the interpretation of statutes , display and consideration of evidence and the canvassing of arguments, all of which are directed towards dispute resolution. Litigation could also be said to be law in practice within the boundaries of a court room . It crystalises the experience of law in practice. Litigation is a concept that has been pre-installed in human nature and has evolved into what it is today by means of modifications in order to establish an effective method of dispute settlement .
The plantiff and defendant presents their arguments , giving response to objections made by counterparts , while the presiding judge(s) gives credence or condemns the motions made by each party. The little child watches the scence with great enthusiasm and fascination as he wonders how individuals could exercise such great command of language and analogy.
As attractive as this area of law may seem, it has proven not to be the best out of options when it comes to dispute settlement . It also has it disadvantages some of which would be outlined in the forgoing paragraphs.
Taking into cognisance the principles that directs and coordinates this area of law , it can be said that litigation is more about winning arguments than actual dispute resolution. As a counsel handling a criminal case is advised to prove his case beyond every reasonable doubt and in civil cases , the arguments are weighed on a scale of probability . The whole process of presentation , cross examination and testifying , may not still resolve the dispute in question, thus, resulting into appeals made to courts of higher jurisdiction.
In addition, litigation is more often than not discouraged even by lawyers because of the number of months and even years it may take to get to the trial stage. The pre-trial stage is a very tiresome and boring one, as clients are made to file statements or claims and wait for counter claims which must also be replied to. The amount of time spent at the pre-trial and trial stages can be said to be a test of one’s true patience as litigation follows a strict set of conventional rules and procedures .
It has been argued with proof and evidence in some quarters that litigation favours only the wealthy and not the general public . This argument has been put forward because of the high fees lawyers demand for representation in court , not to talk of the expert witness fees and other monetary expenses that may be incurred during the process of litigation. The judiciary no longer serves as the hope of a common man but an exclusive preserve of the rich and wealthy .
Finally, litigation puts individuals at the mercy of a judge who may have a misconception of what justice actually is . This is very possible because justice is a fluid term that finds expression in every sphere of human society but can be said to be subjective in meaning, understanding and application.
The demerits and problems of litigation can be solved through the popularisation and adaptation of alternative dispute resolution which includes but not limited to mediation, conciliation and arbitration
Alternative dispute resolution is a fast growing area of law within the judicial system which has helped in the dispute settlement and in the actualisation of justice
In conclusion, the law recognises the fact that the actualisation of dispute is inevitable due to the relation and social-intercourse that occurs in the society . It therefore makes provisions for the resolution of these actualised disputes by developing methods and systems that would aid quick and effective settlement of disputes and would also facilitate dispensation of justice in the society.
Written by ; Adeoye Moronkola.
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