The long term effects of litigation
In my everyday life as a solicitor and mediator, I often reflect on the cases I have litigated for my clients in the past. I sometimes wonder what might have been the outcome, in some of the more historic of those, had there been a greater emphasis, at the time, on mediation.
It is only in the relatively recent past that the Courts have pushed mediation more proactively, although the building blocks for promoting the early settlement of cases have, arguably, been in place at least since the start of the 21st century, following the coming into force of the Civil Procedure Rules.
I was once involved in a complex dispute, relating to a boundary issue, where the litigation was costly for both parties and lasted over a period of several years. Although my clients won the case, on virtually every contested point, in a different sense, they lost. In what way did they lose?
- The costs of the case were highly expensive and led to periods of financial instability for my clients
- The stresses and strains of the litigation badly affected my clients’ health and their relationship
- The litigation consumed a great deal of their time, which could have been better spent on more important things
Even if you have a case that is likely to succeed, on the legal points, the impact of litigation can still be debilitating and, in some ways, life changing. Court proceedings are inevitably time consuming and uncertain: you might win, you might lose, ultimately the final decision rests with the Judge and the sheer worry that can cause the parties, whilst the case is proceeding, should not be underestimated.
Mediation works because it is quicker and cheaper than Court proceedings, allows the parties to agree settlement terms which, in some cases, the Court is powerless to order and the parties can be as open and honest as they wish, since the process is entirely confidential and non-prejudicial until the point of settlement.
The author: John Appleby
