Thu 28 Nov 2019

How To Pick Your Battles

"If a wise person goes to court with a fool, the fool rages and scoffs, and there is no peace" 

This saying is biblical (from Proverbs chapter 29, verse 9); ancient (from around 960 BC); and expressed in the language of Middle Eastern "wisdom literature" (which is often deliberately stark in order to get its point across) - but the problem highlighted by the proverb is one which is easily recognised by many 21st century litigators.  What do you do if you have a dispute with a troublesome and difficult opponent on the other side, who simply refuses to negotiate?

Choose your Battles

Very often, and sometimes to the surprise of their clients, litigation lawyers will advise clients to avoid court if at all possible.  Litigating in court is expensive, stressful and takes things out of your control.  The decision is taken out of your hands and instead left to a judge, who may reach an outcome that neither you nor your opponent are happy with. 

There are a number of other options instead of Court, particularly for family law disputes.  Mediation allows a couple to reach a decision themselves, but facilitated through the support and assistance of a qualified mediator - Morton Fraser can offer experienced family law mediators to help resolve such disputes.  Round table meetings aim to achieve the same result, but with the couple negotiating in the same room, supported by their own solicitors.  Arbitration is a new but growing area in family law, which enables the decision to be made by an arbitrator in an arrangement similar to a Court, but which has the benefits of privacy for the couple, allows them to set their own timetable, and also choose the decision-maker.  There is then the traditional route of negotiation via solicitors, whether through correspondence or meetings. 

Only a very small percentage of family law disputes go near a Court.  A much small percentage of those go all the way to a completed Proof (a final hearing).  Even when Court proceedings are running, there is always the possibility of settling the case along the way, through one or other of the options above.

Unfortunately, the chances of reaching a sensible, amicable solution are considerably less than if the person on the other side of the case seems fixated on causing problems and delays rather than working towards an outcome.  In some cases, Court may simply be inevitable.

Don’t Delay

Given the benefits of reaching a negotiated solution, and the many disadvantages of Court, it may seen contradictory for lawyers (in some circumstances) to advise their clients not to delay with Court action.  However, in some cases, that can be the best advice.  If it is clear that negotiations are very unlikely to get anywhere, and the person on the other side is simply determined to delay, not produce the relevant documentation, and cause expense, just getting matters started at Court can be the only way to force co-operation and get matters progressed.

It can be very difficult to make the call as to when starting Court proceedings early will be the most efficient route for saving expense and stress, and when it might still be possible to reach an out-of-Court solution.  That is when it is essential to benefit from the experience of a solicitor who has seen similar situations many times before.

Don’t "rage and scoff"

As the proverb suggests, bad litigants will often try to take up a lot of time, energy and money, throwing about accusations, mud-slinging and doing anything other than focusing on the actual issues to be determined.  In family law cases, this can sometimes take the form of very personalised, angry letters, full of threats and unnecessary detail, which seem designed to inflame the situation between the couple rather than move towards any kind of resolution.

The natural instinct of the client receiving such a letter is to want to respond in kind - to refute every fact perceived to be incorrect, pay back every threat with a similar one, and set out their own, misrepresented, side of the story.  However temporarily satisfying such a response would be, it is not one that I would recommend to my clients.  The ultimate aim of any litigation needs to be kept in mind, which is getting to a satisfactory solution with the least possible expense.  This will often mean that a response to a lengthy diatribe might need to be a bland, neutral and short paragraph, aimed at de-escalating tension.

None of the above, unfortunately, means that dealing with a "bad litigant" will be a pleasant, or cheap, experience but whether in the 10th Century BC, or the 21st Century AD, there are still steps that you can take to minimise the accompanying stress.

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