How do you fare in the rough and tumble of the present buying expeditions? Are your thoughtful presents the right ones and do they bring the result you wished for? Or perhaps you take the easier option and just buy vouchers? The fact is, one can relate the shopping for presents experience to deciding on how to approach a dispute. The “easier” option is the settlement route; whilst the labour intensive route, the showdown in court. On the face of it, with both experiences, the “easy” option leaves both parties short on the “full satisfaction measurement”. But think about a little more. Settlement v contested dispute Settlement may not bring everything each party desires, but, in a contested dispute the claimant can never be guaranteed everything he has claimed and there is also a “litigation risk” which could amount to a 30% chance of that apparent 100% case not going the Claimant’s way at all. The claimant’s case may tick the boxes for the judge to find in his favour but the judge may decide that the claim is not worth the figure asked for, and then there’s the cost. The successful party may not get all its costs back, and will undoubtedly never get back his or her “in-house” costs. If a settlement can be negotiated at an early stage, it must be obvious from a commercial standpoint that there will be a great deal of saving of costs. If that is taken into consideration, it may perhaps seem worth accepting less than the original amount claimed, or a reducing the demands in a claim. Commercially sound? My gift buying experience over recent years is that taking the lengthy route has not been successful, and also not commercially sound. This is often true with litigation. There are, of course, times when that exhaustive search must take place, – some parties will need to search for the answer through litigation. Settlement on the other hand, either directly, or by using a mediator to help facilitate an agreement should be considered on most occasions. In mediation there is a certain amount of leeway. An agreement based on the discussions within mediation enables the parties to deal with all matters, both the main, and ancillary items – just like the voucher approach – a mixture of gifts. With the specific item, as in litigation, the recipient’s pleasure may not be what is expected, or hoped for, leaving both the giver and receiver disappointed. We are now approaching Easter. Remember to think about “the perfect gift” analogy when considering those disputes you have to deal with. Case study • Many cases reported in the press demonstrate the pitfalls of undertaking lengthy and costly - often settlement would have been the sensible commercial approach. • Take for instance the self-employed contractor who sued for £2,232.00 and then received a counterclaim for remedial work for £3,019.00 – net value £797.00. Following a total of 9 days of court time over a twelve month period, the Claimant was ordered to pay £265.00 + interest to the Defendants, but at what cost? • Each side was ordered to pay their own costs, the total of which exceeded £100,000.00. If the parties in this case had settled, neither side would have thought it had received “full satisfaction”, but I bet they now realise that would have been a better place to be than where they were after the court proceedings. First published in New Law Journal 20 January 2012 www.newlawjournal.co.uk
I’ve been in legal administration for over 35 years – I know how things work, and appreciate the benefits of mediation as an essential tool to consider when in dispute. I can discuss its benefits to…
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