Mediation is no joking matter
I’m a big fan of mediation. This is nothing new. I’m a strong believer that if you can get around the table with a sensible mediator and everyone is keen to do a deal, then it’s highly likely that a sensible deal will be done, and even if it isn’t, you’re likely to be able to close the gap between you. What’s more, the preparation you will do for mediation is likely to be necessary for court proceedings, so much of that work will be reused.
There are, however, other reasons why I like mediation, and part of that relates to what courts are like. Don’t get me wrong. Many courts are great, and most of the staff I deal with are lovely, but they are over stretched and poorly resourced, so it’s no wonder that you can feel a bit like you’re in the middle of a circus. Things like
1. I turned up at Shoreditch County Court for a hearing that I had been sent a notification for, but when I arrived (with the clients in tow) I was not on the list. After waiting at the counter for an hour, it was established that they’d made a mistake and there was no judge for me and no file. We waited for another hour until someone could be found to help us. I’ve had similar things happen to me on a number of occasions, but this is the one that sticks out most, because the clients were breathing down my neck all afternoon!
2. I had a three day Tribunal adjourned on the first morning (ie when we were all at court standing around waiting) because they didn’t have a court room for us. Apparently suggesting we start in the waiting room (or in Starbucks!) was not a sensible idea. I’ve also had adjournments due to no Judge being available (also last minute).
3. I had a file that was mislaid by the court and was eventually established to be in a locked room in the basement. They had lost the keys and didn’t have enough budget that month to get a locksmith in, so we had to wait until the following month when the file could be retrieved. When the Judge asked why they didn’t just break down the door, we were told it was believed to have asbestos in it, and any attempt to tamper with the door would be a health hazard. I know you probably think I’m making this up, but I’m really really not!
4. It’s not just the courts that get it wrong. I did a hearing in Willesden County Court some years ago, where Counsel for the other side was late, and the Judge allowed us to start. We were about five minutes in, when opposing Counsel arrived (very flustered – it had been the poor signposting in the court that had led to him getting lost in the building) and with very minimal preamble, he launched into his opening submissions, explaining all the reasons why he was right. The only problem was he had misunderstood which side he was on and had given all the reasons why we were actually in the right. Not unsurprisingly, we won!
So, if your solicitor encourages you to mediate or settle, due to “litigation risk” and/or the difficulties in predicting what the costs are going to be, these are some of the reasons why. It’s not due to a lack of faith in you or your case, but because there are so many unknowns.
Or, if you are in the middle of court proceedings, and your solicitor tells you that there are delays and hold ups due to the court (such as never being able to get through to them over the phone because they turn their phones off!) they are not making it up or making excuses for their own delays. It really is true.
Perhaps most importantly, if your solicitor is on at you about the importance of good paperwork (contracts, terms and conditions etc) with a view to reducing the risk of ending up in court, these are the things that they are trying to help you avoid.
Kleyman & Co Solicitors. The full service law firm. Hoping for the best and preparing for the worst!