Bill Wood: a nightmare returns

paperstackIn common with many other advocates I used to have a recurring nightmare in which I walked into a court and was expected to address the judge while knowing absolutely nothing about the case.[1]

One night last week, after an interval of several years, the nightmare returned. I was apparently instructed to bring a claim against the makers of a well-known luxury car brand.

They for their part, unfairly as it seemed to me, had instructed the legendary Barcelona striker Lionel Messi to represent them. (He had added silk to his numerous other trophies). In the event the hearing went surprisingly well. So well indeed that we seemed to be moving on to quantum issues when I woke up.

But I digress.

The question is: why has the nightmare returned?

The best I can come up with is that it reflects the increasing tendency of parties (or rather their lawyers) to demand from me as the mediator more engagement with and more technical analysis of the legal issues.

Bluntly I’m being put on the spot. Recently two parties amended my mediation agreement to require me (the usual wording merely “permits” me) to express my views on the merits of their respective positions at the end of the mediation day if the case had not otherwise settled.

The case didn’t settle. Frank appraisals took place. As far as I could tell I left the building cordially disliked by both sides. But the following day both parties told me that the assessments had been a good platform for my continued attempts to settle the case.

The process continues. We shall see.Continue Reading

Civil justice reforms and the balance of power

Almost all mediations are strongly affected by cost considerations. Many are completely dominated by them. Costs are a crucial element in the weighing of risk and reward that parties are being asked to engage in at a mediation and mediation’s big attraction is often that it gives the parties the chance to settle and to “stop the clock”.

So it is unsurprising that the changing machinery for the incurring and recovering of legal costs in our civil procedure system is a matter of enormous interest, indeed concern, to the mediation community.

The Super-claimant

Mediators got used to working in the CFA/ATE universe. It had its problems but we got used to it. It was always difficult to negotiate with the “super-claimant” who had passed all the risks of defeat to a combination of his lawyers and his insurers. “Bill, what incentive do I have to settle for that?” such a Claimant would ask. “There is simply no down-side for me in fighting on.” The obligation to pay the lawyers and the ATE insurers (and often the funders too) might well mean that until a very substantial sum of money indeed had been tabled at a mediation, the super-claimant him- or herself was getting nothing.Continue Reading