The cost of litigation has always been a focus, but economic factors in recent years have increased this further. Now there are lots of new ways to reduce the costs of litigation. But don’t forget, the costs are not always financial.

In the last 5 years or so, there has been an increasing level of concern expressed publically about the costs of litigation, and justifiably so, the costs that people are concerned about are not simply the legal costs, the fees that are paid to the experts and lawyers and the like but also some of the unquantifiable costs, things like distraction of management, damage to reputation, damage to morale, damage to relationships, in general it is something that clients don’t want to get involved with and once they are involved with it, they want to be rid of it as soon as possible.  So against that background, it makes a lot of sense for clients to wish to, if not avoid altogether, the cost of litigation.

In the legal world, there is a range of initiatives that has been introduced in recent years to help reduce the cost of litigation, some of those are things like rules that have been introduced in the federal arena to force litigants to take genuine and sincere steps to resolve disputes before they even commence the litigation, if they fail to do that there is the threat that the Court may not let them proceed with their claims. 

At the Commonwealth level and indeed the State Governments, there is also an emphasis on organisations, agencies, resolving or at least attempting to resolve their disputes or at the very least, considering alternative dispute resolution before they go down the Court process.

Judges are also of their volition, increasingly putting restrictions on litigants as to the way that they can run their case, things like limiting the discovery, limiting the extent to which affidavit evidence can be used and also limiting the size of tender bundles, or at least the documents within tender bundles that judges will refer to, and that’s all with the aim of those judges trying to reduce the length of the hearings and reduce the scope of the matters in dispute. 

So what can be done then for your organisation to minimise the costs associated with litigation, well, unfortunately there is no clear and simple answer to that question. There are a number of different steps that could be taken, I want to suggest a couple of approaches today but neither of them is rocket science.

The first, quite simply, is about prevention. Prevention is always better than cure. So if you’re in an organisation which has a range of disputes cropping up in particular areas, they’re repetitive, they’re predictable – then start by analysing why those disputes arise.

The second approach is also simple in conception, not necessarily in execution. In short it’s “don’t panic”. Sit down and carefully and dispassionately consider early on in a dispute, why it is that you’re there, what the potential outcomes are, the upsides, the downsides, and what you hope to achieve by defending a claim or pursuing a claim.

Once those objectives are understood, it’s easier to map a path to your desired outcome and understand what options are available to get there. Of course it’s not always in your own hands: the reactions, the emotions of the party against whom you’re litigating plays into it as well. But at least it gives you a better opportunity of resolving the matter in a way that’s preferable and acceptable to your organisation – quicker and less expensively than you might otherwise do.

It can be difficult to slow down and be objective, particularly if you are involved in a dispute which may be causing you some great anguish. But the benefits of doing so can be significant in the long run.