Wednesday, October 3

Common sense trumps law in mediation every time

The plaintiff side ran a very, very narrow and technical legal argument.

They argued that a court would never - read my lips - ever - find that the plaintiff contributed to its own loss as a result of a fraud, notwithstanding the fraud by the defendant's employee went undetected, in large part, because of the plaintiff's woeful back office systems.

And they had contributory negligence cases to die for - even a House of Lords decision bang on point - which go down big here... apparently the Law Lords say you can't steal from an innocent then, when you're caught, blame the victim saying that they made it too easy for you to do so.

Hmmm... actually that might have a logic to it.

But the plaintiff's CEO got it - he knew blind freddy could have driven a truck through his systems. He couldn't go into an open courtroom and argue that his publicly traded company had no responsibility based on a House of Lords case no one in his world would take the time to understand.

Once he understood the architecture of the argument he didn't care what the case said or what the five lawyers in the room said the case said - the laws of his marketplace were far more powerful, and he knew it.

1 comment:

Colm said...


Isn't common sense what mediation is really all about? Mediation is certainly not law - even if some counsel think it is!