04.12.2017

Why does history repeat itself?

Moot Hill Partners LLP celebrated its first anniversary in October. We are a radically different dispute resolution service focused on accelerated settlement. Our backgrounds include business, law, armed forces and diplomacy. We have all witnessed how the extreme pressure of litigation, a consequence of business disputes, has triggered or been triggered by rebellious or revolutionary behaviour.

In our contemporary world we are increasingly aware of conflict in the workplace, the threat and experience of cyber crime, fraud, fake news, turbulent employee relations and breaches of trust at all levels. And however well we administer the day-to-day complexities of business, when in an ‘unprovoked’ fight it is vital to have allies with a strategy which balances tactics for winning with options for conserving and compromise. I recall Churchill’s famous words “… however sure you are that you can easily win, that there would not be a war if the other man did not think he also had a chance.”[1]

Many people believe that when embarking on litigation they are right to fight and will certainly win. Equally, many also believe that to engage in mediation is tactically wrong-headed and weak. But, this description by war historian Andrew Wheatcroft on the rise of Ibn Saud and his successful campaign recognises that battle can also be approached as a strategic dance with complex conventions: "War in the desert was as much a ceremony as combat. … Two groups would meet in the desert, trade insults and war cries, a few shots would be fired and the weaker party would retire. Often the shots would be omitted, for ammunition was costly."[2]

In the context of a battle, skilled negotiation has a defining role and arises from the minimal use of force, the preservation of scarce resources and discerning leadership with an eye on the end game.

You may wish to take a look at the cases on the Moot Hill mediation database of case law, our online library of cases since 1999 which reveal the growing importance of mediation in the civil courts especially over the last two years. There are increasing instances of exasperated judicial comment on cases which are “crying out” for mediation and cost sanctions “if one party frustrates the process by delaying and dragging its feet for no good reason.”[3]

So why do so many business leaders avoid the strategic arena of negotiation and mediation when dealing with conflicts and disputes before ending up in the courts only to be admonished by the very people they thought could only see it ‘their way’?

To be continued…


[1] Winston Churchill, My Early Life, (1930, London: T Butterworth).
[2] Andrew Wheatcroft, The World Atlas of Revolutions, (1983, London: Hamish Hamilton).
[3] Thakkar and anor v Patel and anor [2017] EWCA Civ 117
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Qualified as a CEDR accredited mediator in 2005; provides conflict resolution consultancy to corporate and SME clients - resolving complex issues through open communication, negotiation and creative…

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