Monday, 23 January 2012

Back to reality (testing, testing...)

My clients are always right.

That's not as crazy as it may seem if we put it in the context of proceedings that get under way and head towards a contested hearing.  If we are wrong then one way or another we don’t fight.

Somebody will ask “what about the ones that don’t succeed at trial?” Well, the answer comes in two parts. First, we cannot immediately think of any and, secondly, not only the other side but also the judge got it wrong!

Seriously, there are commercial and reputational, as well as professional and regulatory, reasons why we try to avoid running losers.  The bottom-line is it’s bad business.

So, it follows that if somebody - provided they are a stakeholder in the proceedings - wants to discuss the merits then I’m generally happy to do so.  There might be exceptions for specific tactical reasons.

I include within the definition of “stakeholders” mediators, and within that - as I perceive them - ACAS conciliators.

But can I confidently expect that consistently - indeed ever on recent showing - one is going to be prepared to engage with me in a discussion about the merits of a claim or response? The situation hasn't changed since I blogged about this last May[1].

Coming back to the point that our clients are always right, what I really want to see is clear evidence of those neutral beings talking to the other side and using mediation skills to promote the dawn of realization.