5.1 Preliminary Perspectives

A vital part of dispute resolution is the management of information; what you give to the other parties and what you get from the other side. Information is the key to the accurate evaluation of the dispute, and a vital element in the prediction of the likely outcome.¹ Understanding how information management affects outcomes will help the litigator strategically plan for conflict resolution that will best serve the client’s goals.

In some ways then, the litigation process itself, (whether finally resolved by the parties, or with the help of a mediator or adjudicator) is one big negotiation and information exchange process. The litigation process is the default, and is itself designed so that the parties learn about each other’s facts, values, perspectives on law, predictions of outcome, and, if the parties do not resolve their dispute for themselves, the court learns about these same facts, values, perspectives on law, and predictions of outcomes, and reaches a decision. In litigation, each side discovers as best it can the others view of the predicted value of the case in the eyes of the decision maker and if there is any overlap, the parties settle. It is a decision-making process that is based on economics, rationality, and wealth maximization.

Settlement is the outcome in 99 percent of civil cases so the process seems to work well most times in the non-criminal context. Where liberty interests are at stake it is another matter. Some times parties complain about the expense of getting themselves in a position to determine the value of the case. Still, under the position bargaining model of negotiation, the process is designed to empower the parties to settle when they rationally should settle. Even where the parties resort to a court, the court’s decision itself may not finally resolve the dispute, but instead provide the parties with further information and leverage to reach even a different and better settlement that better fits their needs.

It is important to recognize the values inherent in the adversary system. The traditional approach to litigation is premised on the model that better decisions are made if each side must test its information by evidence in front of an unbiased decision maker. This process is based on the model of a fight, or competitive game, rather than on the basis of a cooperative model bent on getting at the truth.