Over the years I have had numerous discussions with clients about the importance of planning and pre-trial litigation preparation.
'Let's wait to see what happens at mediation' is a common position for both lawyers and clients, in circumstances where a report or valuation would be more useful before, rather than after. When it comes to litigation preparation, the reasoning behind this seems to be that, if neither side knows the answer, it will make it easier to negotiate a deal, but this is a double edged sword. Do we really make better decisions out of fear than we do reason? Probably not, but arguably, we make them faster; but who is to say that it won't be our clients who suffer? A disbursement is cheaper than a trial, and we ought to remember that.
As litigation lawyers, we all understand the difficulties associated with balancing the competing interests of material in anticipation of a trial: need, cost, and showmanship. The expenditure must satisfy at least one of these three interests, or it isn’t worth the spend. Ignoring these interests, however, isn’t worth it either.
In a recent judgement of the Supreme Court of Victoria (see Kinghorn v City of Kingston [2019] VSC 240) the Judicial Register reinforced the need for planning for beyond mediation by making an indemnity cost order against the solicitors seeking an adjournment of the trial.
"If you are acting in litigation it is important to understand the cause of action and what evidence is needed to prove every element of it. It is crucial to also prepare your case thoroughly as early as possible without reliance on the possibility it will settle at mediation, especially when a court date is looming."
With litigation preparation, we have a responsibility to be ready to proceed and bring matters to a close, unless exceptional circumstances make that impossible. Furthermore, matters that are squarely in issue from the outset of the case (based on the pleadings) need to be addressed early on to establish the prospects of a case, should it not settle at mediation.
A mediation presents many opportunities, not just because of its typical benefits (confidentiality, informality and so on) but it also gives us an insight into the other side’s position and ‘view of the world’. Perhaps if we are more forthcoming about the strength of our own positions, or more correctly, our clients’ positions, by being prepared with reports, valuations and outlines of why we hold a strong position, then the other party to the dispute may be more likely to consider any offer made more thoroughly, due to the creation of uncertainty in the strength of their own mountain.
Perhaps if we all start mediating earlier, and gathering our material on time, we will avoid a costs order as against our own offices and keep our clients happy – or at least, as happy as they can be.
If you would like to speak to someone about a dispute resolution practices, you can book a confidential and obligation free consultation.
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