John Sturrock QC: The costs of litigating
The Times reported last week on a bitter boundary dispute between two pensioners, each in their eighties, over a strip of land less than a metre wide. Apparently, the legal battle has cost them £500,000, contributed to the death of a spouse and caused stress-related illness. The parties have been engaged in a seven-year dispute at Perth Sheriff Court. Now the sheriff is urging them to drop the case, saying that it is difficult to identify the benefit in continuing to litigate when judged against the effort and expense involved.
It is hard to believe that this has gone on for so long and at such cost. Unfortunately, these situations occur and people end up in prolonged disputes in courts where the cost, time and stress often exceeds the benefits even to those who get a decision in their favour. As Abraham Lincoln once said: “Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time.”
Of course, achieving compromise also requires those giving advice to do all they can to help their clients to find a consensual solution. When gender recognition in the legal profession was not yet established, Lincoln went on to say: “As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.” In the reported case, it is possible that the lawyers, who would know from experience how traumatising litigation can be for those involved, did all they could to try and persuade the neighbours to find a compromise. If so, one would then look to the court to take the initiative at an early stage in proceedings to avoid the seven years of conflict these people have gone through. Many lawyers and courts would do just that.
Recently, an expert group (of which I was co-chair), established by Scottish Mediation and supported by the Scottish government, made a number of recommendations for greater and earlier use of mediation in Scotland. It recognised that, in Scotland, we may have fallen behind some other jurisdictions in making mediation widely available across all sectors, not merely as an alternative to going to court but as a way to help disputing parties find an agreed solution when they get stuck in their negotiations.
The group’s report, Bringing Mediation into the Mainstream, acknowledged that, with the help of a mediator, relationships can be maintained and restored, much time and cost saved, more creative outcomes arrived at and considerable stress and anxiety avoided. Experience shows that this applies as much to commercial and professional situations as it does to families and neighbours.
In modern Scotland, what happened in Perth Sheriff Court should be a thing of the past. It falls to the government, courts, policy-makers, legal advisers and the rest of us to encourage our friends, colleagues and neighbours to use mediation more. We’ll all benefit.
John Sturrock QC is founder and senior mediator of Core.