commercial, property, estates and litigation lawyers
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. Nevertheless, many people find that issuing a writ feels better than sex (depending, of course, on who their current partner is).
Yet, 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. This is where you meet the other party with their lawyers with the object of settling the dispute.
In the 70s, 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 and 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.
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 gives a brief case overview (five minutes). This can be like the Assegai waving 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 than 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 cheated.
In a perfect world your enemy would leave the mediation and be promptly run over by a bus. This seldom happens.
At the end of the day, if you can't let it go, and mediation is not for you, then there is always the exploding cigar.
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