"I am the parliamentary draftsman;
I compose the country’s laws.
Of half the litigation in the nation,
I am undoubtedly the cause”.
J.P.C., “The Parliamentary Draftsman”, Poetic Justice
In his soliloquay "To be, or not to be", Hamlet listed "the law's delay" between "The pangs of despised love" and "The insolence of office".
“I don’t know who does [understand “this Chancery business”]. The Lawyers have twisted it into such a state of bedevilment that the original merits of the case have long disappeared from the face of the earth. It’s about a Will, and the trusts under a Will – or it was, once. It’s about nothing but Costs now. We are always appearing, and disappearing, and swearing, and interrogating, and filing, and cross-filing, and arguing, and sealing, and motioning, and referring, and reporting, and revolving about the Lord Chancellor and all his satellites, and equitably waltzing ourselves off to dusty death, about costs. That’s the great question. All the rest, by some extraordinary means, has melted away.”
Charles Dickens, "Bleak House"
“Jarndyce v Jarndyce drones on. The scarecrow of a suit has in course of time become so complicated that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have found themselves made parties in Jarndyce v Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit… Wards of court have faded into mothers and grandmothers; there are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane.”
Charles Dickens, "Bleak House"
“The present issue is one of comparative simplicity. That is, the facts of the case are intelligible to the least-instructed layman, and the only persons utterly at sea are those connected with the law. But FACTUM CLARUM, JUS NEBULOSUM, or, 'the clearer the facts, the more dubious the law'."
A.P.Herbert, "Uncommon Law"
Quotes are not readily available for other reasons to mediate, rather than litigate. Some other reasons are touched on below.
Litigation is typically undertaken in public, and journalists and other members of the public are free to attend. The same does not apply to mediation, which takes place in private, and usually settlements reached at mediation contain confidentiality provisions.
Loss of Control
You can walk out of mediation at any time, or ask for a change in the process. The same is not true of litigation. Once a Court case has begun it is out of your hands. It takes on a life of its own, the process is dictated to you, you become bound by legislation and judicial orders and a breach can invoke the use of coercive State powers. If someone sues you, you have to defend, failing which you are likely to lose by default. If you sue someone, if you later want to withdraw the suit, you usually have to pay the other side's legal costs.
If one or both of the parties or their lawyers adopts an antagonistic approach, the temperature rises and the parties often dig in and try to find some kind of leverage to force the other side into conceding, which makes things worse. When emotions run high, common sense usually disappears. Mediation aims to take the antagonism out of the dispute, and to facilitate constructive dialogue.
Formal Court proceedings compel business owners and their staff to take time away from attending to business, and the business can suffer badly as a result. Usually it is not possible to obtain a Court award for payment for the time spent from the other party.
Litigation is highly stressful. Mediation is significantly less so.
More on Costs
As mentioned above, if you sue someone, and you later want to withdraw the suit, you usually have to pay the other side's legal costs. This is not the case in mediation.
Further, as many know, if you are substantially unsuccessful at Court, you can be ordered by the Court to pay the other party's legal costs. This is not the case with mediation, where no-one can be compelled to do anything and like everything else, the subject of costs needs to be negotiated.
You do not have to engage a lawyer to represent you at mediation, but can if you want to.
As a client pays fees to their lawyer during a Court case, they feel they want to recoup their legal costs, or at least avoid having to pay the other party’s legal costs, and the dispute often ends up being more about legal costs than the initial subject matter of the dispute.
Mediation is significantly less expensive than litigation. (To give an idea, it would not be surprising to find that a Court case is 10 or even 20 times more costly than mediation, possibly more).
Litigation is Narrow
Litigation focusses on the narrow legal issues in dispute (chiefly financial), whereas mediation takes a broader view which includes the parties' overall interests and underlying interests, allowing the parties to investigate more helpful avenues of settlement.
For information on our mediation services, see the link here.
For some reasons to chose mediation, see the link here.
If you would like assistance with a mediation or negotiation, please contact Rod Stumbles at +613 8692 7255 or here.