I wish to make a revelation: A eureka moment, if you will.
As head of Litigation a firm of solicitors in London, I am placed in a unique position of acting in a broad range of subjects, across different disciplines including Civil Litigation, Criminal Litigation, and Family Law.
It strikes me that some jurisdictions have developed faster than others.
In Family Law, during the course of a divorce where finances and the split of the matrimonial pot are in issue, there is in some cases, a direction that there be an FDR, a Financial Dispute Resolution.
One goes before a Judge, but not the Trial Judge, who considers all Without Prejudice communications; All Calderbank offers, any previous mediations or offers made and considered. That Judge also considers what Civil Practitioners understand as the Statement of Case, setting out the basis of claim and response.
The Judge then usually gives some welcome choice words about the costs of Litigation, the emotional roller coaster experienced, the futility of arguing of something broken. The Judge gives a sobering forecast of more costs to come, and why furnishing the pockets of their Lawyers is usually unproductive and not constructive.
The Parties then say where they have got to in terms of trying to reach settlement, and the Judge sends them on their way. However, the Judge remains available, subject to his case-load, throughout the day, whilst the Parties continue to attempt to thrash out a mutually satisfactory compromise.
As the Parties return, (usually because the Judge calls upon the usher to bring the Legal Advisors before him), that Judge gives a view on where he thinks a Trial Judge will decide (I.e. a 50/50 split, an 80/20 split of the financial estate). That usually focuses all concerned to be realistic about their prospects, to quickly develop mature emotional intelligence, and to set aside emotion, and concentrate on the commercial reality.
Why do we not have this in Civil cases?
Imagine a Judge independent of judging the case at Trial, casting an opinion on the position off the Parties. I can think of no better, more helpful way, than to have a Judge with experience of deciding such cases, giving an opinion on prospects of success. I believe that many a case has ended early because of such a mechanism, although I have no statistics on the matter.
When it comes to Trial, at the conclusion when it comes to considering costs, the Trial Judge is then shown the FDR Judge’s paperwork to consider w heather e Parties have acted reasonably I in trying to reach settlement, with the possibility of costs sanctions if they have not done so.
I have spoken to a variety of Judges in all disciplines, High Court, Recorders, And District Judges, all of whom have indicated with varying degrees of grunts, varying in pitch (the higher the Judge, the lower the pitch), and other non-verbal communication, that they would welcome such an opportunity to give the Parties a piece of their mind as to how the case may peter out when it goes to Trial in the absence of settlement.
I welcome development of this area in Civil Litigation. The best placed Association to steer such a concept is the London Solicitors’ Litigation Association, of which I am a member.
David Rosen is a Solicitor-Advocate, Partner, and Head of Litigation at Darlingtons Solicitors, based in London, EC4, and a visiting associate Professor of Law at Brunel University.