Home › How Litigation Costs Behave > When settlement and trial preparation move togetherWhen settlement and trial preparation move together
Published: 28 April 2026 | Reviewed: 18 May 2026
(3-minute read)At some point in a dispute, two paths begin to run at the same time.
One path is directed towards resolution.
Positions are explored.
Exchanges may occur with settlement in view.
At the same time, another path continues in parallel.
Work progresses to maintain procedural readiness.
Evidence and procedural material are developed in anticipation of a possible hearing.
Both paths are active.
Neither is paused.
These are not alternatives.
They are concurrent conditions.
Resolution activity and preparation for hearing may proceed within the same continuous pathway.
This is a common feature of civil litigation.
It arises across different types of matters and forums.
It does not depend on any individual decision or error.
It reflects how the process is structured.
Over time, this coexistence shapes how work accumulates.
Two paths within one timeline
From the outset, there may be an expectation that the matter will resolve before trial.
That expectation may be reasonable.
At the same time, the possibility of trial remains present.
Procedural steps continue.
Timetables are maintained.
Preparatory work may still be required.
The same period can therefore carry both resolution activity and hearing preparation.
The stages associated with each path are not always bounded.
They may overlap within the same period.
Each path remains available.
Each generates work while it remains available.
Maintaining both possibilities generates ongoing activity.
Expansion of scope
When two paths operate in parallel, scope tends to expand.
Each path generates its own requirements.
Each continues according to its own logic.
Work in one path may extend the other.
Material gathered for hearing may affect settlement.
Settlement positioning may require evidence.
Evidence prepared for one purpose may become useful for another.
Over time, the boundary becomes less distinct.
What begins as two paths can become a single field of activity.
Cost follows activity, not outcome
Cost follows activity, not outcome.
Each path generates cost while it remains open.
The eventual path does not reverse the work already done.
If the matter settles, preparation undertaken for a possible hearing does not disappear.
If the matter proceeds to hearing, settlement activity already undertaken does not disappear.
Cost is created before the outcome is known.
It becomes visible progressively as activity occurs within each path.
Decision control and timing
The coexistence of these paths affects how decisions are made.
At any given point, choices are framed by immediate requirements.
A procedural step.
An exchange directed towards resolution.
An event requiring response.
Each choice may appear discrete.
But both paths continue unless one is actively constrained.
The ability to pause one path is not always clear in practice.
Pausing preparation may carry risk if resolution does not occur.
Pausing resolution may defer the possibility of conclusion.
As a result, both paths may continue.
Timing is influenced by procedural obligations and external events.
Scope is influenced by the need to maintain more than one possibility.
Decision control is distributed across participants, procedural requirements and timing.
It is not located at a single defined point.
Within this structure, continuing both paths may align with the need to maintain readiness, respond to procedural requirements and preserve negotiating position.
These considerations operate together.
They do not require any participant to act unreasonably.
No single point determines the overall direction of work.
Information arrives progressively
The extent of each path is not usually visible at the outset.
Early descriptions may refer to stages or phases.
But the interaction between settlement activity and hearing preparation is not always fully specified in advance.
As the matter progresses, additional steps may arise within each path.
The interaction between them may generate further work.
Information about scope emerges progressively.
It may become clear that both paths have expanded only after work has already been undertaken.
No fixed stopping point
Parallel paths do not contain a natural stopping point.
Activity directed towards resolution can continue to a late stage.
Preparation for hearing tends to follow the procedural timetable once commenced.
Neither path ceases automatically because the other remains active.
Unless the matter resolves or is formally concluded, both may continue.
That is why cost can accumulate even where settlement remains possible.
The process keeps more than one future available.
Keeping more than one future available requires work.
System behaviour, not individual conduct
This pattern is often experienced as a gradual increase in activity and cost over the life of a dispute.
Individual steps may appear reasonable when taken in isolation.
The overall pattern emerges from how those steps are structured to occur together.
The coexistence of resolution activity and preparation for hearing is a standard feature of how matters are conducted.
It reflects the need to keep multiple possibilities open within a single process.
The issue is not whether any step was improper.
The issue is that two active paths can generate cost before either path is finally chosen.
A recurring structure
A consistent pattern can be observed.
Two paths operate within one timeline.
Each generates work while it remains available.
The point at which one path ceases is not defined in advance.
Until that point, both may continue.
Scope and cost are shaped by the continued maintenance of both paths over time,
rather than by the outcome eventually reached.