We need to challenge the aggressive status quo in litigation

Last week we launched guidance for the better conduct of litigation, which feels like a really exciting stage in the development of Mindful Business Charter.

The organisation was launched in 2018 to reduce the unnecessary stress in the ways we work. It is not just about lawyers, but lawyers are a big part of our membership. When launched, the Charter focussed on four pillars. Openness and respect is the key one – that we care about our fellow professionals and are willing to be brave and have open and honest conversations about how we are working with each other and the impact that has on us and our people. The other pillars might be understood to be examples of how that might play out in different aspects of our work – meetings and communications, rest periods and delegation. But MBC was always about much more than the words in the charter – it is a challenge to be brave and to be the change that will enable healthier and more effective ways of working.

Shortly after the launch of MBC, I met with the founding organisations to talk about their aspirations for the charter. A key theme that came out was that we wanted to build a legal profession that we would encourage our children to join. The litigation guidance is about making that more of a reality, a collaboration across the profession and a commitment to make a difference.

The guidance is the output of a taskforce of senior litigators in private practice and in house. The group has met regularly over the past many months. We began with a list of some of the classic things that people do which cause stress and then sought to distill some common themes. These became our statements of principle. As with everything MBC, they are not rocket science. And they are not a prescriptive rule book, but rather an encouragement to be more thoughtful, more mindful, to take the time to be more aware of the impact of our behaviour, and to be brave enough to challenge the status quo and the ways that we have become used to working. I very much doubt that anyone will find anything in those statements of principle that they would disagree with.

What we then did was to ask how those statements of principle would play out in a range of different scenarios – those situations where habituated behaviours can cause unnecessary stress, and we have set out questions for practitioners in those situations to ask themselves before they act.

And it goes without saying that we are not trying to set up a rival to existing rules and procedures, or to challenge the authority of courts and tribunals in giving directions. We hope our work will sit alongside all of that and help practitioners think about how to do the necessary, complex, important and often highly charged and pressured work of litigation in more mindful ways, that can enhance not just the wellbeing of people involved in litigation but also the quality of their work.

In time we hope that it will be something that opposing sides refer to in their dealings with each other. So that together we can make meaningful change in this area of legal work – and it might then become the springboard for us to look at other areas of work too.

At its heart is respect for ourselves and our fellow professionals, something that used to be, and perhaps can be again, part of the DNA of our profession.

Richard Martin is Executive Officer of the Mindful Business Charter and former City employment solicitor