From Murder And Madness to Mediation

Previously published in the European Lawyer July/August 2004

History has traced a long path of horror and torture before reaching today's rather gentler systems of dispute resolution. Patricia Martin takes an irreverent look at the past methods used to determine right from wrong and discusses how, while the techniques may have altered dramatically, the view of lawyers has not.

"All lawyers are parasites" was the response of the CEO of a multinational trading house upon my being first introduced to him at an annual Trade dinner at the Grosvenor House Hotel in London some years ago. Normally when faced with such elegant small talk I tend to make light of those sentiments by telling a joke against my own profession. But for whatever reason on that occasion I felt irritated enough to attempt a defence on behalf of the profession as a whole. I suggested that a comprehensive system for the administration of justice based on a highly motivated and skilled legal profession was the true mark of a civilized nation, and that as a society we had certainly come a long way from the time when we merely hit each other over the head with clubs in order to settle our differences. I would like to say that my eloquence was sufficient to change his view on the subject forever, but instead I suspect that he thought of me thereafter as both a flaky upstart as well as a parasite. He certainly made his hurried excuses at the time and moved on.

I have had many occasions since then, time to reflect on the point I was attempting to make. For example, I believe we have reached a more civilized world order with parties adopting modern day mediation rather than litigation as their preferred form of dispute resolution. In mediation the emphasis is of course on resolving the dispute itself, rather than determining who is right or wrong. This can only work in a society that is sophisticated enough to recognise that settling the dispute in an "amicable" way is the overriding objective.

It has not of course always been thus. Since man uttered his first grunts he has found reason to find fault and have disputes with his neighbours, which in turn has led to the need for some form or another of dispute resolution. Without the veneer of civilization, brute force generally sufficed. However once man decided to work within a social framework that involved the cooperation of others, then it became necessary to adopt certain rules in order to govern disputes and their resolution. The rules were either God or...