The Art of Litigation: Bull or Bear?

Here Richard McMeeken, Partner in the litigation and dispute resolution team at Morton Fraser, explores how some of the different pressures on litigation are changing the practise, whether these are for the better or not, and details some of the more nuanced strategies we are starting to see from litigators as a result.

Historically, when individuals or businesses tried to solve disputes themselves with little or no luck, they would turn to a litigator who would scare the opponent into submission. Dubbed the “Rottweiler” approach, this style can still be a necessary means for victory.

For example, one party in a dispute may either avoid making payment for no good reason or wait until the last possible moment to act. Sometimes, businesses refuse to pay almost as a matter of policy unless court action is threatened. In these cases, heavy handed tactics with strict timescales and threats to sue can be the only way of getting a result for the client.

However, certain aspects of litigation are under pressure to change, which begs the question: is the infamous “Rottweiler” approach still the only route to success?

In Scotland, as with the rest of the UK, the downturn in the economy in 2008 saw business faced with an increased financial pressure to solve disputes in the most cost-effective way. That pressure has helped change the culture around dispute resolution in a more permanent way.

When a bullish litigator threatens court action, this can cost a significant amount to both parties, so more and more, businesses are avoiding the Rottweiler approach unless it is completely necessary.

Aside from cost, a growing desire to maintain commercial relationships is also driving change to the way businesses seek to solve disputes.

For many, the issue in question is one part of an otherwise mutually beneficial and often long-standing commercial relationship. If a litigator threatens to sue or uses other aggressive tactics, it can do unnecessary damage to the relationship and more harm than good in the long run.

Taking a dispute to court will also normally make it entirely public and depending on the scale of the issue or the parties involved, it is something that businesses sometimes seek to avoid to protect reputation or prevent commercial secrets or confidential business information from becoming public.

As a result, a more conciliatory and commercial approach is ever more what clients are looking for. This often encourages litigators to be more commercially minded, viewing the issue from both sides and understanding where the opponent may be coming from to find a resolution that best serves the client while also preserving an important business relationship.

Alternative Dispute Resolution (ADR), and in particular mediation, is becoming increasingly important as a means of resolving disputes. The commercial court rules encourage parties to consider mediation and, in practice, commercial judges often commend it to parties as a means of resolving their differences.

For a start, mediation can be significantly more cost-effective to those involved. And for businesses who want to maintain heightened confidentiality around the dispute, mediation can ensure that only the individuals in the room are made aware of the issues in dispute between them.

Mediation encourages businesses to sit on the same side of the fence rather than opposite. This inspires both sides to try to understand the issue from the other perspective, and often provides clients with an opportunity to find common ground. In the case of two businesses with a longstanding relationship which they wish to maintain, this can only be a good thing.

More broadly, clients expect their lawyers to advise them sensibly about commercial strategy. Mediation won’t always be appropriate and in clear cut cases a “Rottweiler” approach can still be required. The ability to balance both ends of this spectrum is becoming increasingly important to the art of litigation.