Dispute resolution is often a multistep process that can start with negotiation, move on to mediation and, if necessary, end in arbitration or litigation. This progression allows parties to start off, quite naturally, with less-expensive, less-formal procedures before making bigger commitments of time and money.
Still, there may be situations in which you wonder if it would be better to sue first and then aim for a settlement, rather than starting with a more amicable approach.
Lawyers are obliged by professional conduct rules to inform their clients at the start of a dispute what are the possible routes and what they think are the likely costs, length and outcome of the proceedings, depending on a scenario. Choosing the right strategy at the start of a dispute is the most important point. But what else should a client that is new to litigation ask their lawyer?
Solvency of your opponent
First thing to do is to ask yourself and your lawyer is it really worthwhile suing the other side. A lot of people forget that it can be really stressful, it can be really expensive and actually, there are no guarantees that money will be recovered. If a defendant has no money, no assets and no income - how are you going to get money from him?
In Poland there are ways to check whether the defendant has money or any other assets. You could ask your lawyer to carry our such a verification or apply for freezing injection. If the assets are seized, you can be sure that the future verdict can be enforced.
Another question that you could ask is how complex might the dispute be. Complexity introduces multiple variables into a dispute – in particular, it increases the chance that the actual costs will exceed the estimate. It also brings greater uncertainty into any assessment of the outcome. Will the large amount of the evidence support your position or is there something in there which will tip the balance in the other side’s favour? Will the judge agree with your interpretation of a difficult area of law or disagree and think you are being unreasonable?
Complexity is difficult to judge and can change over time but an experienced lawyer should be able to provide some guidance to you.
Modes of communications
You might also ask your lawyer what types of communication with the other side would be appropriate. The transition of a dispute into formal proceedings is a shift of communication. No longer do the parties speak to each other; it is now left to their lawyers to correspond. But will a single mode of communication facilitate a resolution or merely prolong the dispute? What about a multi-modal communication – with both correspondence between the lawyers and conversation between the parties? This is something you should discuss with your lawyer, bearing in mind the personalities involved on each side and what your ultimate goals are.
Something else that is worth considering is the impact that the dispute is likely to have on your emotional wellbeing. Time and cost can be measured but damage to your mental health might not be recovered. What criticism will be made of you and your behaviour? How will you feel as the dispute drags on, knowing that you may lose at the end? These are all things you have to endure.
Time is a factor here, too. It is easy to start the lawsuit, it is very difficult to stop it. You have to be aware that sooner or later there will be court hearings and the concentrated effort from you in the courtroom will be required. It is at the court hearing that the dispute finally becomes real. It is one thing to exchange letters and argue about legal issues and a completely different thing when you are sitting in a courtroom facing your opponent.
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