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Litigation
involves an action being raised in Court. There are formal procedures
and timescales set by the Court and rules that govern how cases are to
be conducted. The Court has power to order parties to do particular
things (like transfer property to another person) or to make orders that
provide that individuals must not act in a certain way (for example that
they must not dispose of property). The Court can make awards of
expenses. A court action allows a party to request that the court make
orders in their favour. The parties need to back up their request with
relevant information. Each party can challenge the other person’s
requests. The Court will make a decision on the basis of the applicable
law with reference to the information presented to it whether written
documents or evidence from witnesses.
Pros and Cons:
Litigation is often the only way of achieving resolution of there is
unwillingness on the part of the other person to engage in negotiation,
if there is a power imbalance, violence or dishonesty. There are
powerful remedies available in the court process if a party is
uncooperative or refusing to provide a complete disclosure. A decision
will be made and a solution imposed upon parties even if one party has
refused to engage in negotiations.
But
The process can be lengthy and expensive. It is based on an adversarial
system which highlights differences between parties and usually
polarises parties’ positions. The range of remedies available to the
court is limited and do not generally include remedies that result in
flexible or innovative outcomes.
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