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In my mid-teens, I was fascinated by “The Trial” by Franz Kafka and became a lifelong devotee.  I came to realise that this very insightful book has relevance beyond its very bizarre plot.  I have also come to appreciate how relevant Kafka’s work is to ordinary daily life and I explain below how ASM Plus facilitated mediations and investigations are so effective at addressing the conundrums that it poses.

A little bit about the book

In what by anyone’s reckoning is a very convoluted plot, the central character in The Trial, bank clerk Jozef K, is apprehended by two unnamed agents from an unspecified agency and having been accused of unspecified crime he is temporarily freed and required to attend court on an unspecified date.  Ultimately and without ever knowing what crime he is supposed to have committed, Jozef is abducted and killed.

In between these two occurrences Jozef becomes embroiled in a sequence of bizarre events that leave him ever more bemused and distressed.  After his arrest, his landlady sympathises and consoles him but at the same time suggests that he is guilty of an immoral liaison with a female neighbour.  He visits the neighbour in order to express his concerns and inexplicably ends up kissing her.  Subsequently he is directed to attend a court building on the following Sunday. With great difficulty he locates the relevant court and is told off for being late by a less than respectful judge.

An attempt to confront the judge leads Jozef into an encounter with the wife of a member of court staff who attempts to seduce him and, in the context, of a subsequent disorientating tour of the court premises further vague and aggressive accusations are put to him by some court clerks.

Subsequently, Jozef walks into a cellar at his bank to discover the two agents who had arrested him being flogged because of accusations that they had tried to extract a bribe from him. Remonstrations with the flogger prove to be ineffective and exactly the same thing happens the next day. An uncle recommends Jozef to an elderly lawyer who turns out to be capricious and ineffective. A whole sequence of further events including some very unsavoury encounters transpire before Jozef’s untimely death but at no point does the “trial” ever take place. The first-time reader is left as disturbed and bemused as he was.

Why this book is relevant to everyday life

“The Trial” is a black satire that ridicules the legal process and it is not difficult to draw analogies with a whole plethora of oppressive regimes and institutions, both past and present.

Beyond such immediate considerations, in looking at the broader application of the book I recalled a presentation given a couple of years ago by a respected UK mediator.  In this presentation he outlined what had transpired after he accepted instructions to undertake an investigation arising out of an accident that was said to have been in part occasioned by a deficient motorcycle crash helmet.

I forget the precise details of the case but essentially a motorcycle rider sustained injuries that potentially, were wholly or partly attributable to the allegedly defective helmet. The mediator/investigator was instructed to determine the extent of any culpability on the part of the motorcycle rider, the retailer who sold him the helmet and the manufacturer.  Matters were further complicated because of the involvement of a trading standards officer who was not very well briefed and did not properly consider the numerous fine points of detail.

As the presentation continued it became a little convoluted.  Some members of the audience were very critical, and regrettably there was some rather disrespectful barracking. To me, it became increasingly apparent that the difficulties the mediator was experiencing in giving his address were founded not on any deficiencies on his part. Rather, he found himself describing a scenario in which none of the interested parties had any clear idea as to what the factual situation was and in the course of seeking to blame others, some of these people had expressed themselves in vague, abstruse terms.  In the main the various parties did not appear to have been deliberately obstructive.  Rather it appeared that they were very uncertain as to how the ostensibly relevant statutory law and regulations meant and how they should be applied.  Those pieces of law that had been identified were vague and badly drafted and to my ears at least made little sense.

This mediator did not at any point find himself in the ignominious position of the falsely accused Jozef but in his investigatory, some may say quasi-judicial capacity, he was just as bemused. The sinister hues of Kafka’s novel were not obvious but the notions of uncertainty, unfairness and above all injustice that are highlighted in the Trial were not so very far away.

Those who were critical of the mediator during the presentation should really have offered congratulations. Notwithstanding some ostensibly insurmountable difficulties, in a short space of time he managed not only to make sense of some very difficult factual scenarios and legal provisions but also provided a conclusive report that was of benefit to the various interested parties.

So why instruct an ASM Plus mediator or investigator to deal with a case such as the motorcycle helmet case referred to above?

In my experience as solicitor, specialist tribunal judge, mediator and investigator, the motorcycle helmet scenario outlined above is quite common.  Even very well drafted legislation and rules cannot take account of each and every factual scenario that comes along.  The courts are perfectly capable of making findings of fact but particularly in the context of the additional delays brought about by Covid-19, only do so at the end of a long and often convoluted pretrial procedure process which means that interested, often quite innocent parties can wait for months if not years for an outcome.

  • An ASM Plus mediation or investigation could quite probably be convened in a matter of days and could be concluded very soon thereafter.
  • An ASM Plus mediation and investigation will work out around 80% cheaper than going to court or to a tribunal.
  • ASM Plus mediators and investigators work in plain simple English rather than legalese whether speaking to clients, drawing up a mediation agreement or writing a report.
  • There is none of the cross examination you would see in the context of a court or tribunal proceedings.
  • Parties are strongly encouraged to speak for themselves and express themselves fully. Questions may be put to them by the mediator or investigator but always in an unpressured non-confrontational way that helps to ensure full and frank responses. This in turn means that all concerned have a fair and confidential opportunity to consider how to interpret the law provisions without fear of inadvertently incriminating themselves.
  • ASM Plus mediators and investigators are very adept at working online and are very flexible about when they work. They always endeavour to meet the needs, difficulties and time requirements of individual clients. There is no travelling time and none of the lengthy waiting times that people invariably have to endure when they go to court.
  • ASM Plus has a very high success rate.

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