The blog took its bucket and spade to the Dorset Jurassic Coast.  Where better with a sunset like this, taken during a barbeque above the beach?

When I qualified as a solicitor in the mid-1970s the High Court still enjoyed a halcyon time during the months of August and September known as the Long Vacation, during which time did not run for the service of pleadings (as written statements of case were then called). There were no hearings, not even interlocutory ones, unless there was real urgency. Before obtaining a hearing date you had first to apply for permission from the ‘Vacation Judge’. The short straw for this unenviable role was usually drawn by a recently appointed judge who was dragged back to London from his own family holiday specifically to hear such applications. He (as it invariably then was) rarely disguised that he would much rather be elsewhere and woe betide you if you could not show real urgency why your case could not wait until October.

The great advantage of the Long Vacation, from the lawyers’ perspective, was that you could then go away on holiday secure in the knowledge that, whether or not your opponent was also away, he (again, as it invariably was in those days) could not take advantage of your absence.

Explaining to clients, especially those from the USA (continental Europeans always seemed to appreciate the leisurely approach), why their case should grind to a halt for two months just for the benefit of the legal profession was another matter. In due course, in order to maintain England and Wales’ supremacy as an international jurisdiction, the rule that time did not run during the Long Vacation (later euphemistically renamed the Summer Vacation) was first restricted to August and then abolished altogether.  Life was never quite the same again for the legal profession.

There are no ‘Long Vacations’ for mediators, although August remains a traditional holiday month and there are fewer mediations. (That is, if you discount the informal mediations which take place during family holidays; active listening to those who feel that they have not been listened to sufficiently carefully during the preceding year; a reality check as to whether leaving the beach at 6.00pm really is going to allow enough time to pack up the house and car by 6.30pm; achieving win-win when there appears to be an irreconcilable difference between those who prefer the beach to the golf course.)

And, of course, in those Long Vacation days there was no mediation. Cases ran their length, often at a leisurely pace. Settlement would usually be attempted by ‘without prejudice’ exchanges between the solicitors – often by letter (no emails either) and round table ‘without prejudice’ meetings between the parties and their legal advisers were rare. Even suggesting one would have then been perceived as a sign of weakness.

Very often cases would be settled ‘at the door of the court’, which was often the first time that the parties and their lawyers would all see each other.  Indeed, I once had a case which settled between the outer and inner sets of double doors leading into court; one barrister remarking to the other as they walked through ‘why don’t we just split the difference and settle 50/50?’, to which the other barrister seemed willing to accede. What a waste of time and money that was! All the careful (and costly) preparation on both sides dismissed by a seemingly chance remark by a barrister who, having received a handsome brief fee for fighting the case, could now be back in chambers in time for a mid-morning coffee. Admittedly both litigants had to agree, but by then they were so unnerved by the prospect of giving evidence and the whole panoply of the Royal Courts of Justice and the wigs that neither took much persuading that it was better to leave the court with something than with nothing.  An early mediation could have achieved the same result at a fraction of the cost.

Halcyon days?  That depends on your perspective.  I don’t think so, but what’s your view?

Categories: Mediation Blog

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