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Win, lose or draw

Bypassing litigation through mediation can save taxes, costs and emotional damage, as well as avoiding an 'all or nothing' outcome, says Lloyd Junor

5 December 2013

Litigation has developed since pre-Norman trials by combat and the system remains. Today, however, the rules of court have been refined so that manoeuvres of the past, such as issuing proceedings without prior notice or serving evidence just before trial, have largely fallen away.

The parties now skirmish before battle (using pre-action protocols) and strict rules govern the early disclosure of evidence. Litigation by surprise has gone but it can still be a very bruising encounter, not least in terms of costs.

We all know mediation is a beneficial method of resolving disputes. Taking the 'trial by combat' analogy one step further, it is the parlez before battle: the final time opponents can negotiate and try to resolve their differences before engaging in full-blown litigation, with all the risks of losing and - even if winning...

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