The Probability of Success

Even though most of us are not perfectly rational economic beings, clients considering dispute resolution services will still employ some sort of cost-benefit analysis. Dispute lawyers inevitably get the question “what is my chance of success?” which assumes that the client already has visualised their desired form of success – and that gives lawyers the chance to frame what success can look like, instead of struggling to offer a statistical or probabilistic answer.

Strictly speaking, adversarial methods such as litigation or arbitration can only result in one of two outcomes – the plaintiff wins or the defendant wins. Perhaps if the plaintiff seeks multiple remedies, then we can further subdivide the probability, but the binary outcome means that a client’s probability of succeeding in these situations is 50%.

The courts publish caseload statisticsregarding the number of cases accepted and processed within a calendar year. None of the statistics available actually show what the outcomes are, and naturally so because the court has to be impartial rather than being outcome-driven.

Contrast this with the available statistics from some of our local mediation institutions:

1. Singapore Mediation Centre reports a 70% settlement rate, with 90% of cases resolved within one day since 1997. This is on a base rate of hundreds of cases in recent years.

2. Singapore International Mediation Centre’s CEO Chuan Wee Meng stated at the hashtagaijacongress2022 that SIMC had a settlement rate of about 70%, and the settlement rate remained about the same despite having to conduct more remote or online mediations after the onset of Covid.

Although these statistics also do not show what outcomes the parties arrived at, it implies that parties have more than an even chance of coming to a new agreement which both find acceptable (otherwise there wouldn’t be a settlement). Instead of the usual win-lose scenario, it’s possible to achieve a win-win situation.

Some clients may say that they have not succeeded if they have compromised. But what is the price of the success that one envisions from obtaining a favourable judgment or an award?

1. There are the immediate or tangible losses such as time required to prepare for and obtain the judgment or award, and of course the amount of money to be spent on lawyers and institutions.

2. There is also the difficulty of rebuilding a relationship after it has been put through the slowly-grinding wheels of justice.

3. The losing party may not voluntarily comply with the judgment or award, so additional resources are required to enforce them – something which is arguably less likely when parties have willingly settled and are much more prepared to perform their end of a new bargain.

The probability of success is much more nuanced if parties are clear about their interests and alternatives, flexible with the options and willing to compromise because they are not fixated on achieving specific outcomes. Lawyers can choose to be part of this success and discharge their duty to fulfill the client’s interests at the same time by helping the client define what it means to succeed, before guiding them to the best way to achieve that success.