25/7/2022 “Res Ipsa Retainer”Back in the day when lawyers regularly used Latin, “Res ipsa Loquitur” covered the notion that a Court could infer negligence from the very nature of an accident or injury. Literally translated, the facts speak for themselves. In the 1990’s Lawyer comedy Ally McBeal, one of the characters is asked if his client has a case. He replies “Res Ipsa Retainer” - effectively the fact that his client had hired a lawyer spoke for itself - they have a case because they hired a lawyer. I always loved the idea of that because, whilst in a true legal sense it’s total nonsense, in a practical day-to-day sense it’s totally true. Once someone has hired a solicitor, who starts writing letters, who takes the dispute to Court, then they have a claim, no matter what the legal basis for it.
The other party has to respond. If the case has no legal merit then they need to take action to get it struck out. And until that happens, there is a case, no matter whether it can possibly succeed. I suppose it’s a ‘truism’. And how does mediation fit into such a scenario? Presumably if someone doesn’t have a case then why do you want to mediate? A process that ultimately usually finds common ground or a concession. Why would you even think of giving something to someone without a case? The answer may lie in why the dispute arose in the first place. There is usually a falling out, the parties may have issues that need resolving separate and apart from the dispute. Take boundary disputes, or as solicitors often call them, neighbour disputes, because it’s rarely about the boundary itself. The neighbours have fallen out. They are often using the disputed boundary as a ‘proxy war’ to have a go at each other. Mediation can help to explore all of the issues that have arisen, it can deal with the matter in a holistic way that the Court cannot do. The Court will simply apply the law. And decide on the merits of the boundary dispute. It does nothing to resolve the underlying issues. And the danger is that such cases can expose grey areas. It isn’t always absolutely clear that a case will fail: plotting a line on the ground is not an exact science. As mediator, I talk to the parties about themselves, their families and their relationship with the other side. I find out about the time that one of them says his neighbour swore at the other person’s children when their ball went over, how they get annoyed because they don’t do anything about the dilapidated fence, or that their friends constantly block their driveway when they pop round. I can then start a conversation about the real issues, the parties learn to communicate with each other, understand the real issues. And then we start to look at the legal issues, we try to resolve everything, hopefully once and for all. This is as much conflict resolution as it is settlement of a legal dispute. That’s the magic of mediation. It's truly holistic. Comments are closed.
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AuthorRichard Marshall is an Accredited Civil and Commercial Mediator with over 25 years experience as a Litigation Solicitor, as well as being a qualified Solicitor-Advocate. He is the founder of Striving to Settle, through which he works as a mediator and provides negotiation training. www.strivingtosettle.co.uk Archives
August 2022
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