Legal cartoons and humorous comment (c) Paul Brennan. All rights reserved.

I decided on 101 reasons as I didn’t want to depress the entire legal profession by having 1,001.
Paul Brennan, Lawyer, Sunshine Coast, Queensland, Australia

Sunday, June 21, 2009

# 54. They make things worse

Mediate and be damned

The CIA is alleged to have launched 638 assassination attempts against Fidel Castro including one using an exploding cigar.
Unfortunately assassination is not available to litigants-they are condemned to fight their enemy in the Courts.
Many people find that issuing a writ feels better than sex (depending, of course, on who their current partner is). However in some entrenched cases, after a year or so, all parties can feel like they have been through the mill.
At this stage neither party is prepared to give up but they may be ready for Mediation which is where you meet the other party with their lawyers with the object of settling the dispute.
In the ‘70’s there was no mediation that I recall. Clients were advised not to speak to their opponent. A writ would be served and skirmishes would occur up to the hearing where a huge number of cases settled at the court door. Few facts were admitted. Communication with what we still call “the other side” would be for the most part aggressive. Early settlement would be initiated by the defendant, if at all.

Acting outside these bounds was seen as a sign of weakness. In many cases it still is.
What happens:

1. The lawyers agree on a suitable Mediator usually (yes, you guessed it) another practising lawyer.
2. The parties attend the Mediator’s office.
3. A lawyer on each side makes a brief case overview presentation (five minutes). This can be like the assegai waiving and chanting at the start of “Zulu” or a “Budget Speech” depending on your lawyer.
4. The parties split up into different rooms and once apart the Mediator will tell each party that their case stinks and it will cost them far more that they thought.
5. The Mediator will then flit between the rooms conveying offers back and forth and nag the parties into offering far more than they ever expected until an agreement is reached.

The ideal finish to Mediation (from the Mediator’s twisted point of view) is that both parties walk away feeling that they have been done.

In a perfect world your enemy would leave the Mediation and be promptly run over by a bus. This seldom happens.

If you can't let it go and Mediation is not for you then there is always the exploding cigar.