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Saturday, Sep-19, 2020


Winston Churchill still gets plenty of airtime. He was prolific in many areas and I recently enjoyed watching the film “The Darkest Hour”. Although Churchill is best known as our wartime leader and the person who galvanised the nation against the Nazis, one of his quotes (although these may not be his exact words) is that “jaw-jaw is better than war-war”.

He wrote that: “The statesman who yields to war fever must realise that once the signal is given he is no longer the master of policy but the slave of unforeseeable and uncontrollable events”. He was, of course, saying that we should try to talk our way to a solution rather than fight our way to a solution where possible. He makes the point that, once a fight starts, then events may be out of your control to a significant extent.

This can happen in litigation where once a case is in the court system, you are subject to the directions of the court and various judges who handle your case from time to time.  There are strict rules around timetables and tasks, with penalties if you fail to comply.  It is common for parties to negotiate before and during litigation. This can happen between the parties themselves and/or their lawyers.  Sometimes those negotiations become bogged down and this is when mediation might be considered.

A third party mediator can help the parties resolve a dispute at any stage; the sooner the better from a costs point of view. One of the benefits is that the parties remain in control, the process is confidential, creative outcomes can be considered and often relationships can be maintained or even renegotiated.  This is really an option which should be seriously considered as we come out of the pandemic and possible contract disputes arise.

You might think you have a cast iron case and why negotiate or mediate?  We all know that there is no such thing as a cast iron case (lawyers describe it to their clients as the vagaries of litigation) and a negotiated/mediated outcome at an early stage will mean that you can concentrate your efforts elsewhere, save cost and also the possibility of your opponent going under. You remain in control and, to echo Churchill’s words, you do not become the slave of unforeseeable and uncontrollable events. Mediation can be particularly helpful where parties might want to avoid public proceedings and maintain confidentiality such as in a sex discrimination claim or where the other side might have a counterclaim with some merit.

Most lawyers will be happy to mediate and indeed advice on this alternative should be given from the start. If it is good enough for Winston Churchill then it certainly should be worth considering at any time in some detail.

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