Conflict Resolution: The War Path on Principled and Economic Approaches

Construction | August 9, 2021 | Written by Peter Loewen

Conflict Resolution: The War Path on Principled and Economic Approaches

Trial in British Columbia is designed as a conflict resolution machine representing the final frontier of any given conflict.  It supplants historically popular final frontiers such as dueling, which may have been one of the few remedies available to someone whose honour or pocketbook was raided by another.

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In ideal circumstances, a trial should only occur after all other reasonable methods of conflict resolution have been attempted and found wanting.  The reason for this is that much like a duel, both parties risk much in running a trial, both economically and in terms of reputation.  Typically, litigants have one of two main motivations for litigating to a trial: their honour has been injured or they have suffered an economic loss, damage, and expense, or some combination of both.  Admittedly there are outliers, but these are the main ones.

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The litigant who looks to rectify her injured honour at trial takes a principled approach.  The thing that is most important to her is to have a Judge declare that she has the moral high ground in the dispute.  By way of example, she might complain, “he lied to me” and the motivation may be to have a decision-maker declare “she was lied to by him”.  Risk is inherent in litigation, and I will not address all possible risks here; however, there are specific risks to this approach.  In particular, decision-makers are only compelled to make findings of fact that are necessary to answer the legal test at issue.  Accordingly, although a lawsuit may have been brought in misrepresentation, for example, the court only needs to conclude that: a false statement was made, and the litigant relied on the statement to her detriment.  Accordingly, the decision-maker is not necessarily forced, on every occasion, to delve into the morality of the matter and answer questions such as: what he knew or didn’t know when he made the statement, whether he intended to deceive her or was simply reckless to the possibility or what his motivations were behind making the false statement.  Accordingly, the litigant taking the principled approach can be disappointed, even with a resounding victory at trial.  Compounding that, the cost to attend trial is enormous, routinely costing in the hundreds of thousands of dollars and the recovery of that cost is rarely complete.  Ordinarily, a litigant will only recover approximately 33% of her legal fees, in the absence of special circumstances, if she wins.  On the contrary, if she loses, all of her legal fees remain out of pocket and she will likely be required to pay the opposing party some portion of their fees.

The litigant who looks to rectify an economic, loss, damage, and expense also risks much going to trial but may be more inclined to compromise.  This litigant poses the question to herself, “How do I resolve this dispute within a range of reasonable economic outcomes?”  This approach is reasonable from a financial perspective because it considers and balances: the inherent risks of going to trial, the specific case risks related to being able to prove the case, and the cost of litigation to arrive at a range of acceptable outcomes.  Many cases in the British Columbia court system, considering the amount of money at stake, are not financially viable for either party, whether plaintiff or defendant, to take through a trial.

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Regardless of the approach, what is paramount is reducing or eliminating the specific case risks related to being able to prove the case or defense.  This is the element that the litigant has the largest control over and that can maximize the financial outlook of any case.

© Linley Welwood LLP. The contents of this article do not constitute legal advice. Readers should seek legal advice in relation to their own specific circumstances.


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