Wed 15 Mar 2023

Be Brave. A mindful way to litigate

On 7 March I had attended the launch of the Mindful Business Charter's Guidance for Litigation Professionals in London.


The Mindful Business Charter (MBC) is a practical framework that encourages us to be more thoughtful about the impact we have on each other in the way that we work.  The focus of last week's event was on litigation.  I had always been aware of the Charter's work and the guiding principles, but hearing about it in the context of litigation really brought it to life for me.

The adversarial nature of litigation and indeed any dispute process results in a stressful way of working.  Tactics such as sending correspondence at a time to cause most inconvenience to the other party, overly aggressive correspondence, which can be seen as personal, to the receipt of a flurry of emails with no time to consider the impact or consequences before the next one arrives, all increases the stress of an already demanding job. 

As a contentious construction lawyer, I am used to juggling adjudications (a 28-42 day dispute process) and tactics such as submitting Referrals at holiday periods, or submissions at 23.59, still occur, albeit they are less common than they used to be. Given the fast-paced nature of the adjudication process these tactics do have a negative impact on the receiving party.

Last week's event got me thinking whether there is any real benefit to this way of working.  Whilst there will always be times when court timescales have to be met which result in long hours, in today's world this should very much be the exception rather than the norm.  I also think there is a lot that can be done in the way agents and parties communicate with each other: it must be remembered that whilst you may be writing to XY LLP, it is an actual person on the receiving end of the correspondence.

At the event we were all encouraged to be brave. I reflected on what this might mean in practice in accordance with the MBC guidelines. I do not think there is anything fundamental or new in what I came up with, but I have set out some of my thoughts below.

  • Get to know your opposite number - by this I do not mean become best friends with them but at the outset have a discussion to agree how to approach the litigation without making each other's lives difficult for the sake of it.  For example, if you work part time, let them know this and make clear that any correspondence on your non-working day will either be dealt with by another team member or will await your return.
  • Do not call someone out of the blue - drop them an email to agree a mutually convenient time for both your diaries to discuss the case.
  • If something doesn't need served at 5pm on Friday - leave it until the Monday.  Do not serve something to ruin someone's weekend, just for the sake of it.
  • Discuss your ways of working with your client - explain to them it is actually beneficial to work in a more collaborative way with your opposite number.  This could actually make a big difference if there are relationships to be preserved.
  • Discuss an alternative timetable with the Judge/Arbitrator/Adjudicator - instead of 4pm on a Monday why not 11am on Tuesday?  Or in the case of adjudication, set a fixed time for submissions to be received on the day they are due, rather than leaving the receiving party refreshing their emails until midnight.
  • Think about the language used in your correspondence - if you were to receive that letter or email, how would you feel?

By taking time to reflect and be brave we can all deal with disputes in a more mindful way which can hopefully rehumanise litigation and make the job a little less stressful.

Make an Enquiry

From our offices we serve the whole of Scotland, as well as clients around the world with interests in Scotland. Please complete the form below, and a member of our team will be in touch shortly.

Morton Fraser MacRoberts LLP will use the information you provide to contact you about your inquiry. The information is confidential. For more information on our privacy practices please see our Privacy Notice