In 1998 prior to the implementation of very important changes to the rules in England and Wales that govern civil court procedures I attended a training course and was introduced to the notion of the “fish file”. In legal terms, this is the file in the office that for one reason or another, the people responsible for it avoid. This could be because the case is a complex one, because one’s client is a so-called “difficult person”, or because there are funding issues. In some instances, fish files are borne out of inveterate delays in the court and tribunal system, simply because those involved, even professionals, become very disheartened and may even have lost interest.

Whatever the reason for it coming into being, the law office fish file inevitably accumulates additional, often unread or ill-considered documentation. People in the office consciously ignore it, walk round it and might even cross the road to avoid the psychosomatic but nonetheless noxious smells that it generates. Such files are dispiriting and generate levels of worry and anxiety particularly in cases where disillusioned disputing parties become entrenched.

Sooner or later, a crisis will ensue and a very reluctant lawyer, possibly someone new who has no prior knowledge of the matter will be directed to carry out a review and “take the necessary action”. In some instances, this may be a case of too little too late and particularly if a formal complaint is made, disciplinary procedures could ensue and heads may roll. Even the most able and efficient of lawyers will admit to having been blighted by a fish file and other trades, business and professions are just as likely to encounter this phenomenon in their working environments.

This is not a precursor to me suggesting that fish files should always be passed on to ADR practitioners and such referrals not simply be seen as an opportunity to dump problem cases on someone else. However, the maxim “it’s never too late to mediate” is an apt one. The combination of the facilitative and timely third eye that mediators, arbitrators and facilitators bring to long-standing disputes and disputing parties invariably taking the opportunity to listen and be listened to may well result in a new impetus and a spirit of open-mindedness that may not have been noted previously.

Success will not be guaranteed in each and every instance of a “fish file referral”. However, the overall rate of success, not least in mediation, is high but given the cost-effectiveness that all forms of ADR offer, and that the alternatives e.g. protracted legal proceedings with no clear prospect of success in fish file cases, they are worth considering.

 

The #ASM PLUS Civil and Commercial team comprises: Paul, the joint convenors Matthias Neuenschwander and Russell Foster, Francesco Albertelli, Ben Beaumont, David King, Matthias Neuenschwander and Anthony Wooding. Between us we specialise in all aspects of civil and commercial mediation, arbitration and adjudication. We come from a variety of accomplished professional backgrounds including law, the judiciary, surveying, accountancy, engineering, academia, management and medicine. We are multilingual and with contacts in many different parts of the world we are international in outlook, cost effective and very much geared to the needs of the business community. We also offer a small claims service for businesses and their clients and customers.

Please direct enquiries or expressions of interest to enquiries@asmadr.co.uk or, for an initial, no obligation discussion, please telephone Paul Sandford on 07476 279 307