Mindfulness in litigation

7th August 2023

In recent years, the legal sector amongst other industries has increasingly focussed on and recognised the effects that our mental wellbeing has on our life and work-life. Evidence of these efforts can be seen from charities such as MBC (Mindful Business Charter) whose objective is to improve workplace wellbeing, and last year formed a taskforce who have now provided guidance for litigators.

Despite the best intentions of law firms to make positive changes in the way we work, it seems that litigators are still expected by clients to be aggressive and difficult towards the opposition in a dispute.

A member of the MBC taskforce stated that “it is possible to be both a formidable litigator and a nice person and cooperative with it”, with another feeling that “[t]his should be part of the DNA of our profession, for the health of all of us but also for better litigation”.  Many seem to forget that solicitors have a duty to the court as well as their client and should, therefore, remain objective, reduce any unnecessary aggression toward the opposition and treat all parties with courtesy.

The MBC taskforce see no correlation between antagonistic behaviour and positive outcomes for the clients. The behaviour of the judiciary supports this, there has been an increase in judges ordering costs penalties where solicitors have acted unreasonably to opponents. In those instances, the antagonistic behaviour proved to be detrimental to the client.

It is not proposed for litigators to stop fighting, or fight any less, for their clients’ best interests. Rather, the MBC urge litigators to ask themselves whether the steps they are taking are for the right reasons and not for the purpose of aggravating the opponent.

At Kuits, the Dispute Resolution department pride themselves on being commercial and pragmatic, which includes being mindful about litigation. The team has the experience and expertise to understand the appropriate approach to a resolve a dispute, when aggression is unnecessary and when cooperation with the opponent will best serve our clients’ desired outcomes.

Callum Duff, a Trainee Solicitor due to qualify into the Dispute Resolution department in September 2023, is a Wellbeing Champion at Kuits and made comment on the new guidance from MBC: “It is refreshing to see that in the course of litigation, as an industry we are encouraged to be mindful about the mental wellbeing of ourselves and our opponents. Improving our own mental wellbeing can only increase the standard of our work, which greatly benefits our clients. Of course, being friends with the opponent will never be the aim. However, to achieve our clients’ objectives whilst remaining professional and being held in high regard by my adversaries is something I shall strive to do throughout my career”.

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