As a solicitor, I have been trained to hold one fundamental belief above all others, that the interests of my clients are paramount. Following through this logic, if you have two solicitors each representing a client wanting to agree on a contract, but where there is a potential conflict of interests, the result is a battleground.
We see this adversarial approach repeatedly within the dental profession. For example, Dentist A might be selling his dental practice to Dentist B. If you asked parties A and B what sort of outcome they wanted, I suspect they would like a speedy transaction and lower legal fees. A conciliatory approach along these grounds would lead to a middle of the road position on legal and commercial issues and hopefully both sides would be happy to save money and shake hands. This was the NASDAL philosophy when we devised the standard contract for a dental practice sale agreement.
Regrettably, when NASDAL members are not involved in a practice sale, both sides want to slog it out in their respective client’s interests and a long-drawn out process with higher legal fees becomes inevitable. A typical dispute might be over warranty and for how long it should last. The standard position is two years. But the lawyers will take opposing positions (one arguing one year and the other arguing three years). They will argue, often for hours, over this trifling point.
Ask the respective lawyers if this is the best way to proceed, and they will maintain that unless they do their absolute best by the client, they have been negligent. Not true. They will have been negligent if they do not follow their client’s instructions. But my question is – do they ask the client if he or she wants to take a middle position? If they did, and the client said yes, the solicitor could not be criticised for acting in that manner.
I have recently had a Road to Damascus moment. I was approached, independently, by two parties in a divorce case 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.
In the end, 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. At the time of writing, the case was on-going.
If it proceeds as I would like, we will complete the last lap at minimal cost. There is absolutely no doubt in my mind that the involvement of a mediator could slash the cost and time, not to mention the mental energy and anxiety which will have been spared.
There is a small branch of mediation, known as Evaluative Mediation, where the mediator expresses views based on what he believes to be the likely outcome of the case in court. The concept is slightly controversial, because mediators are fundamentally trained to assist the parties to reach a compromise themselves, without expressing a view as to the likely outcome of the case.
But it seems that in areas of the law where the participators are not greatly experienced and where their advisers are partisan, Evaluative Mediation is the way forward.
As you can tell, Damascus for me represents the middle ground: reduced costs, speedier settlements, and less stress. Put simply, I feel common sense should be the arbiter of all cases, rather than the pursuit of the interests of the client at all costs.
Russell Abrahams is a Partner in the London firm Abrahams Dresden and a member of the NASDAL Lawyers Group.
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.