I should say that I know a lot of lawyers (I am one myself after all) and many of them including some good friends, are very decent people who would not dream of deliberately or wantonly siphoning money from members of the public. In “Madness” I was intending to reflect on the irony of the situation rather than castigate lawyers. Subsequently, in the course of thinking a little more about this issue I recalled that some years ago, the incredibly gifted Ben Elton presented a sketch about his new fridge.

The gist of this very clever piece involves Elton buying a new fridge. Having deposited a few items in it he gets drunk and then discovers that effectively his new appliance, an inanimate object, has started to take over his life. Partly because he is intoxicated, Elton has no idea how to deal with this takeover and in what appears to be a combination of semiconscious haziness and of panic, he effectively surrenders and the fridge becomes the new master. Elton’s rather unlikely hypothesis is just that but using his comic genius, he somehow transforms it into something disturbingly real.

I think that all too often, litigation is like this. At the start of a case, the lawyers act perfectly properly. They take instructions, write letters, advise, prepare the case, commission reports from appropriately qualified experts and file the court papers. Above all, they scrupulously and very properly tell their clients what all this stuff means and what the implications are. Money is talked about a lot but everyone is very positive. As one would expect, the judges and court officials act in an exemplary manner and everyone is happy.

However, despite the best efforts of everyone involved, the process seems to go askew. In the same way that Ben Elton did not contemplate that his new shiny white fridge would “take over” the court case often seems to take on a life of its own. Costs estimates that were authoritatively given seem to go out of the window as the case voraciously consumes vast amounts of public and private money. Delays of a week turn into delays of a month and delays of a month turn into delays of many months. Contentions are dealt with by counter-contentions, allegations with cross allegations. People become indignant and battle lines become hardened.

The litigants begin to experience the same sort of feelings that Elton did when through his alcoholic haze he finally grasped that his fridge had indeed taken over. In the same way that Elton might just wants his fridge to either behave itself or go way, litigants pray for the day when their case will be finished.

Q. Who is to blame for all this?

A. Close scrutiny by a sceptical but informed “man on the Clapham omnibus” will probably reveal that in virtually all respects, the lawyers and court officials have behaved perfectly properly. They have not subverted or broken the law in anyway and the integrity of the court has not been impugned. Mistakes may have been made but in most instances they will probably have been very minor and will not have had any significant bearing on the final outcome. A read through the undoubtedly copious correspondence will in all probability confirm the lawyers kept their clients properly informed and have been quite upfront and scrupulous about their charging regimes.

It seems to me that what often happens is that just like Elton’s fridge, the case takes over and uncontrollably, runs rampant.

Q. Why does this happen?

A. The answer is probably that somewhere along the line, the disputing parties lost control of the process. Their instructions become reported speech, rephrased into legal language by somebody else and somehow, a bit like a sequence of double entry book keeping entries that has one tiny little decimal point in the wrong place, things got skewed. Clients give instructions but despite everyone’s considerable, well-intentioned efforts, their concerns are voiced in the second or even third person and even if not completely lost, the whole point of everything gets mislaid.

Q. How can such a sorry state of affairs be rectified?

A. Wherever possible, give control back to the parties.

Q. How?

A. Encourage disputing parties to go to mediation early and ensure that this is reflected in all court rules. Those who refuse to either advise mediation or go to mediation can and should be heavily penalised in costs.

Mediation ensures that ultimately the parties to individual disputes ultimately have control over both the process itself and the outcome. They are encouraged and helped to listen to one another and consider matters in the round. The process is a sober, reflective and constructive one and there is no danger of behemoths like Ben Elton’s fridge taking over.

By Paul Sandford, Civil, Family and Workplace Mediator, Trainer, Investigator and Contractual Evaluator