litigating a dispute is both a major alternative to negotiating it and a way to force its negotiation. litigation arises when the parties to a "mature" dispute have attempted to negotiate it and failed, or have ignored, or refused, the possibility of negotiating it. If the dispute goes to trial, the parties will, through the cases they present, importantly influence the result. Nevertheless, a judge or jury, rather than the parties, will decide the outcome. On the other hand, parties settle most lawsuits rather than try them. Indeed, it is the deadline that a pending trial imposes on the possibilities of a negotiated settlement, the risk of loss at trial, and possibly the added expense of trial that motivates many lawsuit settlements. Since most lawsuits settle before trial, it is useful to view litigation not solely as a way to reach an adjudicated result, but also as a highly structured negotiation game, a refmed and constrained version of competitive bargaining.' litigation is, in effect, a "branched track" mode of dispute resolution: Although apparently heading for an adjudicated result, the parties can, and usually do, shunt their dispute away from the trial station and onto a negotiation siding. It is therefore important to consider how and why parties progress toward a litigated result while at the same time moving toward settlement, and to understand why the process works as it does.