The Battleground
Lawyers, particularly solicitors, are trained to hold one fundamental belief, above all and that is that the interests of their clients are paramount and that they must do whatever is within their power to further their client’s case.
Arguably, this belief transcends integrity. For example, there was a famous case involving a magic circle firm of solicitors about 20 years ago, where barristers had accidentally sent confidential papers belonging to side A (and I use the word "side" deliberately) to the solicitors representing side B. Much debate ensued, culminating in a magic circle firm of solicitors reading the confidential papers belonging to the other side. Ultimately, their justification was that they had a duty to do whatever they could to further the interests of their clients and that included reading the confidential papers of the other side.
We see this adversarial approach in every aspect of the profession. For example, dentist A might be selling his dental Practice to dentist B for £1 million. If you asked them, the parties would prefer a speedy transaction to a drawn out transaction, lower legal fees, rather than higher legal fees and a middle of the road position on most legal and commercial issues.
But if you ask their respective lawyers, who will almost certainly not have discussed the issue with their client, the lawyers will inevitably maintain that unless they do their absolute best by the client, they will have been negligent.
Not true. They will have been negligent if they do not follow their client’s instructions, but if they had asked the client if he wanted to take a middle position on all issues and the client said yes, this list could not be criticised for acting in that manner.
So, coming back to the sale of the dental Practice, the issue arises as to whether the lower limit on a breach of contract claim, the level of loss below which the buyer is not permitted to make a claim should be £5,000 or £20,000. The rule of thumb, as all lawyers know, is the lower of 1% of the purchase price and say £5,000. But the lawyers will argue, often for hours, over this silly point in which neither client has any interest, except of course that they are paying the fees on an hourly rate for this pointless battle.
And on the subject of fees, it would be churlish to suggest that the reason why lawyers wish to fight each other on every point is to make more money. Rather, if the lawyers are on a fixed fee for a particular job, human nature dictates that they do not argue their respective positions quite so vehemently as they would do if every hour on the timesheet led to more cash. So fixed fees is probably the way forward, at least to speed up transactions and to keep costs down.
The Divorce
But the really bonkers area of law, where this "the interests of my client come first" adversarial approach leads to the most cost, delay and pain is divorce.
Imagine the scene: the clients are catapulted into an area of law in which they (almost certainly) have no experience whatsoever, they are hurting, life has changed radically, the kids are hurting too, there is not enough money to fund two households at anything like the level that they enjoyed before the split, work is going wrong and the solicitors keep on sending bills.
The clients trust the lawyers to get them out the mess that they have got themselves into. They also make requests of the lawyers that are completely irrational, which requests are treated by the lawyers as master/servant orders.
A case that recently came across my desk was the married dentists (with three children) who owned three dental practices and two homes. They fought each other through the courts for two years and the solicitors (and barristers) had creamed off in excess of £500,000 in legal fees. At the final hearing, the judge was moved to criticise both lawyers for allowing the case to run for so long and such exorbitant fees to have been run up. He observed that he had before him 25 lever arch files of evidence, only two or three of which had been referred to during the proceedings.
The reason for the appalling costs was that the husband did not really want to get divorced and subliminally created obstacles throughout proceedings. A simple request for a copy of a contract would have to end up as an application to the court for an order for delivery up of the relevant paper. Ker ching!
I was approached, ironically, by both parties independently, asking if I could take over the case on behalf of the party who approached me. I refused both offers on the basis that I would have been sucked in to an adversarial battlefield, where the party for whom I was not acting would see me purely as the spokesperson of his/her enemy.
By this time, the final order had been made by the court and all that remained was to divvy up the three practices and the two homes. Simples, you say, but oh no! Even that relatively straightforward process could have been dragged out for a period of well over a year and well over £100,000 in legal fees.
In the end, I had a brainwave. I offered to act as a mediator for both parties, who would retain their respective solicitors. I would not wear a hat for either side, but rather I would do what I do best, which is to drive down the middle of the road, bashing heads together if I detected unreasonableness.
It was not plain sailing, because there were many obstacles along the way. But the obstacles were relatively easily overcome, in large part because the person presenting solutions was not seen as the spokesperson of the enemy.
In fairness, the hard work had been done before I became involved and the appetite of the parties for fighting and costs was much diminished.
But it seems absolutely crystal clear in my mind that the whole idea of the adversarial approach for almost all areas of law, particularly divorce, is fundamentally wrong.
There are certain areas where the amount at stake is so significant that the drawing up of battle lines will probably produce the best result. But there are not many examples of this type in everyday life.
Mediation
I hesitate to use the word mediation, but the reality is that this is what it is. There are many different types of mediation, but the fundamental core is that the mediator is not acting in the interests of either party and is intended to assist the parties in reaching compromise themselves without reference to legal positions.
Russell Abrahams, Solicitor, Abrahams Dresden LLP
Abrahams Dresden articles and guidance notes are for general information purposes only and generally state the law as at the date of publication. The information may not be relied upon as legal advice. We are of course always happy to advise directly on specific issues arising.