My next online talk to members of the SCMA worldwide later in the year, is entitled – ‘Mediation Advocacy & Ethics in Claims for the Return of Ancient Art.’
In my available free time this month, I will be reading ‘What’s Fair – Ethics for Negotiators’, which is a publication of the Program on Negotiation at Harvard Law School, edited by Carrie Menkel Meadow and Michael Wheeler. It is the leading textbook for students and practitioners on the subject.
Today I also discovered this article about honesty and integrity in Mediation –
https://lnkd.in/ePnbSEEq
Note also my post – ‘Truth in key pre-action documents is a litigation “cultural” game-changer!’ (23.08.2024) at ‘Carl’s Mediation blog’, in which I wrote:
‘P.89 of the 92 page CJC Review of Pre-Action Protocols Final Report Part 1, August 2023, states that the parties should at all times be truthful and open in their pre-action dealings and communications with each other about their dispute.
“As the matter progresses, you will be required to give signed confirmation of the truth of certain matters in the dispute. There are serious criminal consequences for anyone providing false information in a document which contains a statement of truth, whether the document has been prepared before court proceedings have started or during court proceedings. A statement of truth confirms that a party believes that the facts in a document are true.”
So, if in a key pre-action communication/document which requires a statement of truth, a party knowingly makes a false representation e.g. by alleging a revised factual narrative that is demonstrably false, i.e. because logically, it is self-contradictory, then it would appear to follow that this may result in a criminal investigation and prosecution. If my understanding is correct & if these proposals are implemented, then this will deter unmeritorious claims before significant costs have been incurred, i.e. nuisance value/try-on claims.’
Depending upon how rigorously judges apply these principles, will determine whether the underlying ‘policy’ of the court, i.e. its ‘ethos’, becomes a ‘cultural’ game-changer in litigation.
Meanwhile, I suspect that any lawyer working under a CFA, would not want to go near such an unscrupulous claimant with a barge-pole, as in effect these proposed changes will result in a new and more rigorous standard of pre-action diligence, not only by the parties themselves, but also by their legal advisors – which of course will be an ongoing process throughout the conduct of the litigation.
So, let us see just how strict the judges are, about applying the letter of the CPR in accordance with the underlying ethos, in 2025.