Stumbles Mediation

Business Mediation Services

Why Mediate

Unclear Legislation

"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

Delays

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".

Shakespeare, "Hamlet"

Costs

“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"

Unnecessarily Complicated

“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"

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Quotes are not readily available for other reasons to mediate, rather than litigate. Some other reasons are touched on below.

Publicity

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.

Antagonism

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.

Time

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.

Stress

Litigation is highly stressful. Mediation is significantly less so.