Unnecessary litigation aggression heh

We’ve agreed to attend a mediation for a dispute that’s been dragging on for ages. The other side are organising logistics and told our externals to just give them my direct email to sort out timings. 

Email received from Sr Assiciate for the oppo reads more or less as follows: 

Splish,

The below are our dates of availability for the proposed mediation.

[List of Dates]

You are to confirm your availability by no later than 4pm on 6 May 2022. 

Your position is misguided and untenable and we trust the same will be acknowledged at the proposed mediation. 

Dave Spunkspurter

Senior Associate

Buttfuk & auntlik LLP

 

You hope that that's been put there at the client's specific request, otherwise there indeed would be no point. 

I think it could be put to the court on the question of costs and conduct at the conclusion, if it ever gets there. 

Fook knows, our externals are copied so can presumably point out if needed. 

I’ve just replied “Thanks for getting in touch Dave. I can do [dates]. Look forward to meeting on the day, we can sort this all out then. Cheers, Splish”

Just grandstanding. They will do that dickhead thing of spending all day telling you that there is no claim and then spring into action at about 7:00pm

make sure you bring your sleeping bag along for that one

Just grandstanding. They will do that dickhead thing of spending all day telling you that there is no claim and then spring into action at about 7:00pm
 

Yeah, I’m expecting our allocated room will be a broom cupboard with the air con set to Arctic. Full works. 

I would first like to say, at the outset of mediation, and on the express instruction of my client, that our client’s position IS misguided AND untenable and that our client acknowledges the same.  To whom should it make payable its cheque?

*whispers to client*
*that’ll be £15k plus VAT and disbursements thanks.  And it’s month end so I’ll be invoicing tomorrow.  Cheersyouprick*

"we can't have a mediation in your offices as it's not neutral" 

"You wot m8? I'll come your place and end you. Imagine being scared of an office"

christ alive

remember to reserve the right to refer to the court on costs (assuming it was sent wpsatc?)

Why aren’t you doing this remotely?

Last time I had a FF situation I sat there with my dinner and a big glass of red in full view of everyone.

‘Why aren’t you doing this remotely‘

I’ve noticed there is a trend for a certain sort of bellend to insist on in person mediation again. The sort of bellend who will make everyone get all dressed up, travel for 2 hours and then tell you that your claim is untenable…

That used to be the case Davos but I think everyone so used to mediation via Zoom now there isn’t a significant difference in practice.

"remember to reserve the right to refer to the court on costs (assuming it was sent wpsatc?)"

Doesn't matter what's written above "Dear Sirs", whether it's "wp", "wpsatc", or nothing. If it's not a "genuine attempt" to settle, it's not covered by any type of wp privilege. And I think there is a strong case for saying that a sentence which goes "during [ADR] we expect you to admit your case is entirely misconceived" is not such a genuine attempt. 

I used to think that but getting everyone into a room and not letting them hide behind a screen (and with the additional 70-80% communication by body language) just seems to enable it.

Plus everyone wants to get home. If you are already home, where is the incentive.

There is nothing in the OP's email which is remotely interesting to a court.

Yes it might make the client feel like they are making the other side look bad but seriously don't even waste the time considering whether it's privileged.

This is the high level thinking that I am known for

 

Yes, whilst I can appreciate the intellectual interest, there is no way I’m letting this get to court; it’s been a pain the arse niggling distraction for 18 months. I will stay in the negotiation for a week if that’s what’s needed to out last then. Might set up a full camping stove on arrival to make the point 

Why is this not interesting to a court? They may as well be saying, “We only agreed to mediate to avoid the costs consequences of winning but having steadfastly refused to mediate. But we have no intention at all of settling and we are just wasting costs just to secure a positive inference that we are undermining in this very email.”

The problem with litigators nowadays is that they just don’t understand what their language means. This cretin probably calls every claim “untenable and misguided”.

I adore mediations.  Mostly theatre, posturing and psychology, and then a teeny tiny bit of law at the end.

In person much better for actually getting a deal done 

Hard agree with this.  It's far to easy to close up shop and run over zoom.

I adore mediations.  Mostly theatre, posturing and psychology, and then a teeny tiny bit of law at the end.

Law is usually at the start in my experience.  Love mediations, the solicitor's chance to shine.  Gawd help anyone who wastes everyone's time inviting a barrister along.

I once went to a mediation with a silk because the oppo insisted on bringing theirs. Total fooking nightmare. Clearly he’d decided that was his day to “be commercial”, spent half of it trying to explain to our CFO how the proposed settlement would be treated for accounting purposes

Gawd help anyone who wastes everyone's time inviting a barrister along.

Unless it’s a remote mediation. If so, largely tune out and let counsel do the heavy lifting.

Mediations are 9 times out of 10 a total and utter fvcking waste of time and money for anything other than starting a conversation. 

Has RoF taught you nothing? You need to reply with one of the letters from the all-time-great British Spaz in thread, suitably amended. I’d suggest the Herbies one:

 

Dear Mr Spunkspurter 

Shove your mediation. Us lot are in court with Mr Justice Sweeney and we have an order in our hands and our Counsel is about to give it large. Now get a grip.

Our costs are £6m and rising.

Your conduct is such that absent a timely response we will unleash the dogs of war on your client and phone the LCS about you. Not your firm but you personally. Yes you.

Look out of the window.

See?

We are watching you.

 

Might send him the full CC just so the oppos costs rack up reading the appendices

 

Dear Sir

We act for British Spaz plc. Appendices 1-16 of this letter enclose copies of the contracts to which you are a party. Appendices 17 to 428 itemize the steps, without limitation, which comprise anticipatory repudiatory breach thereof. On our client's behalf we do not accept the repudiation but demand that you perform the obligations which we have set out for your convenience in appendices 429 to 580 You appear to be in breach thereof and we invite your response. Rights reserved in their entirety. Watch it.

Yours faithfully

Clifford Chance.

"Us lot are in court with Mr Justice Sweeney"

Surely with Mr Justice Peter Smith, for better colour. 

I do find this behaviour cringeworthy at best, embarrassing (for them) at worst.  Zero value-add, zero consequence - it's just the stuff I've spent ironing out of my general game for the last 20 years. 

If anything, it screams desparation and weakness and makes me more likely to focus on substantive arguments.  If it's intended to inflame emotions, it has the opposite effect.

 "I’ve noticed there is a trend for a certain sort of bellend to insist on in person mediation again. The sort of bellend who will make everyone get all dressed up, travel for 2 hours and then tell you that your claim is untenable…"

This, recently, only we were defending. Opposition Counsel thought she had us on the ropes by citing a passage from one of our witness statements. We pointed out that it was her client's statement. We walked and the trial Judge later dismissed the claim in a day. Fun times.