For no particular reason, on one occasion over the 2016 Christmas break I glanced at a piece of newsreel being shown on the TV news and saw a brief excerpt from a US 1930s tickertape parade. Crowds, cheering, razzmatazz and above all, paper. A celebrity had come to town and was being honoured for some achievement or another. I could not help thinking that as “fun” as the process itself might have been, it would l have finished in an hour or two and somebody will have been left with clearing up a giant mess. I also could not help reflecting that in a a way the spectacle I witnessed on the tv screen was a bit like high profile litigation.
The celebrity who was the subject of the parade might have been given a minute or two to address the assembled throng but even then would probably have been drowned out. There would have been many people there who never caught sight of the celebrity and some may not have even been too clear as to who he was. Any newspaper coverage that followed would almost inevitably have been effusive in its praise of the event but would be unlikely to have contained much in the way of useful comment.
In the same way, the lawyers and possibly some of the witnesses who appear in court might in the Andy Warhol sense achieve their 15 minutes of fame but in truth their statements and any possible achievements will soon be forgotten. Newspaper reports will mostly highlight the more sensationalist aspects of individual cases and will not provide anything new. Witnesses may well feel they have not been given an opportunity to explain or express themselves and for many there may be a lingering sense of injustice.
Apart from anything else, litigation generates paperwork all of which has to be filed, collated, read by a number of people and then subsequently disposed of via a time consuming confidential waste system. Those responsible for cleaning up the mess or disposing of the confidential paperwork may be left with a thankless task and in the cold light of day, even the “victors” may pause to reflect when the final bills come rolling it. In many instances, the protagonists may all deduce that in reality, only very modest gains have been made and a bit like the great celebrity or the organisers of the parade, they may well come down with a great big bump.
This happens, even in the many cases where the lawyers and witnesses behave with the utmost probity and those responsible have endeavoured to keep things, above all costs, in proportion and have advised their clients impeccably. Like the seemingly incessant stream of paper that weighs down on the celebrity’s motorcade, in many instances, litigation seems to develop a life of its own.
Mediation is a very rational down to earth process that is nothing like a ticker tape parade. Invariably, a mediation will be convened as a relatively early stage, often before things get out of hand. The safe, conventional and above all cost effective, unpressured environment mediation engenders means that the key protagonists, the disputing parties and their lawyers who may even be “celebrities” in their own right will be expected to conduct themselves appropriately. The mediator will ensure that the parties communicate and above all that they listen to one another.
This environment will be free of the costs pressures and the sinking feelings that are experienced either when the aftermath of the parade is being cleared away or the parties’ lawyers have effectively resumed battle over post trial costs issues. In turn this means that those involved can, to use a time honoured phrase, “really get down to brass tacks” and try to work together to resolve their differences. They are much more likely to reach a mutually acceptable settlement they are all comfortable with – a far cry from what one might experience when either standing knee deep in waste paper or waiting anxiously for the outcome of a resolution of the court costs issue.
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.