The Course of Law

I frequently stumble across lines that capture precisely a thing I was trying to say on an earlier occasion. Of course, by that time the conversation is long over. It is generally not practical to call up those who were listening to my inarticulate ramblings, and give them the expression I have found (although I am not above trying).

One nice thing about writing on a blog is that you have the perfect means of doing this: the next post.

A few weeks ago I wrote a piece (Babies and Bath Water) about the harm that results to the traditional the civil justice system, if it is allowed to atrophy through the diversion of financial and other resources to mediation.

Last weekend I was re-watching the 2005 movie of the Merchant of Venice starring Pacino. When Antonio’s ships are lost at sea he is unable to repay a large debt and is bound by contract to give his creditor a pound of his flesh. Antonio’s friend tells him the judge will never grant this relief. Antonio replies:

“The Duke cannot deny the course of law: For the commodity that strangers have with us in Venice, if it be denied, will much impede the justice of the state…”

In other words: there will be uncertainty over whether the law will be enforced. This is bad for business.

There can be no doubt that mediation as a method of dispute resolution must be available as a choice. It must be on the menu in a modern judicial system. But there must also be the ability to resort to the law: a person must be able to determine what their rights are; the law must be enforceable; and the outcome must be predictable.

Here’s how it might have gone if they had a compulsory mediation rule in 16 Century Venice’s commercial court:

Mediator : All right, well thank you all for coming here today. I congratulate you for trying to resolve your differences this way. Now just before we begin, I want to take a moment for us all to consider the cost. (Holding up a chalk board). Mr Shylock, you’re unrepresented?”
Shy: (Puzzled) “What?”
Med : “You don’t have a lawyer?”
Shy: “No.”
Med: “Mr Antonio, what about you?”
Ant: “No. But my friend Bassanio is here.”
Bass: “Yes. And I will pay twice the amount the plaintiff is claiming. Look here is a chest full of ducats.”
Med: “Well we’re getting ahead of ourselves here. I’ll come around and talk to each of you privately after we get started. We’ve got some nice break-out rooms in this modern building, not like that draughty old place down by the public square. Now (writing on chalk board) let’s just say each of you could be out in the market making 100 ducats an hour, and suppose we’re here all day, that’s 8 hours which is 800 ducats for each of you, 1600 ducats, plus my fee, plus the room rental – (displaying the board with a flourish) Look that’s 2,000 ducats! Wasted! Mr Shylock why don’t you start us off. Tell us what you really want. ”
Shy: ” Look I don’t mean to be rude. I just want my pound of flesh which is what I get under the contract. Even if Bassanio’s 6,000 ducats was each divided in to 6, and each sixth was a ducat, I don’t care. ”
Med; “But what if you lose?”
Ant: ” I admit I signed the contract.”
Shy: “See? How can I?”

Mediation wouldn’t have worked, but Shylock should have had a lawyer.