I have always been interested in military history and when the opportunity arises, I sometimes traipse around old battlefields imagining how it must have been for our ancestors who used to settle their differences by arming themselves to the teeth and taking to the field. One such encounter took place at Flodden in September 1513 when an ill judged excursion into Northumbria by the Scottish King James IV ended in the bloodiest ever battle between the countries. It was not a good time to be on the losing side either with the difference of opinion culminating in the slaughter of over ten thousand invaders including James IV himself and the cream of the Scottish nobility. There was no mediation in those days you see, the appalling toll bearing testimony to the Tudor army giving no quarter to the vanquished.
Jackson’s connection with the NFU and northern farming community often takes us to the borders and when a case we were dealing with up there recently settled, I actually stopped off at Flodden on the way home and had a look around. The battlefield today looks pretty much as it must have done all those years ago, and like the author, you have probably travelled the A697 and noticed the distinctive brown heritage signs about five miles south of Coldstream pointing to where it all took place.
The walk around was a fascinating experience and if you’re into this kind of thing, I thoroughly recommend it. There is a clear battle trail enhanced with informative boards explaining the issues and how the home side prevailed because of the boggy ground and mastery of the English bill over the Scottish pike. The topology hasn’t changed over the centuries either and if you want to, you can even climb to the top of Branxton Hill and then charge back down again in the doomed footsteps of the Scottish king.
The relevance of a bloodbath that took place over 500 years ago to this week’s blog is it contrasts the way society used to settle their differences to how they do it today. Flodden is obviously an extreme example but lesser family disputes (James IV and Henry VIII were brothers-in-law) were still often settled through trial by combat or by a duel on the basis that the almighty would see to it that the righteous party emerged victorious.
The gulf between the Tudor’s idea of settling disputes and our own continues to widen as in a world of fast forward, the whole legal system evolves away from conventional lawsuits in favour of alternate methods of resolving disputes. In an increasingly litigious society coupled with the rising costs of going through all the hoops just to settle on the steps, the focus has moved away from entrenchment towards managing the litigation risk and the clients’ expectations. This shift has led to a growth of professional mediators and dispute resolution specialists who employ their legal and often business background and experience to resolving disagreements through arbitration. They are private judges if you like, appointed for the one dispute only and usually in a position to operate outside the ties and conventions of the established procedures.
Mediation normally works well and so it should when you think about it. I mean what is the point of exchanging exhausting pleadings, skeletons and statements in preparation of slugging it out in court when in the spirit of compromise, the parties could agree to share the cost of a specialist mediator who will sit down with them and thrash out a deal? The advantages are obvious. It means that without calling evidence or submitting anyone to cross examination, the parties can cut to the quick stating their position to a trained mediator who will assess the issues and work to a conclusion which while not meeting the higher expectations of either, will usually forge a settlement that both are prepared to walk away with.
Here at Jacksons we are continually instructed to mediate disputes where clients, conscious of the risk, delay and expense of litigation are willing to engage with the other side and submit the issues to a professional mediator. The process makes good business and economic sense for everyone because it not only saves time and money; it saves headroom freeing the parties to get on with more productive and positive matters. You will recall that in last week’s Blog, Jane specifically focussed on the resolution of commercial disagreements in the experience of Michael Sproats, one of our specialist litigators. The interview with Michael is interesting and leaves the impression that times have changed and the maxim these days is no longer the traditional snarl of ‘see you in court’; it is more the supplication ‘we’ll see you in court if we have to but we’d much rather sit down and discuss it’.
Jane returns from holiday next week to resume these pages but in the meantime, it is worth sparing a moment to consider the long term implications of the battle of Flodden. You might have thought that having utterly crushed the Scottish army and slaughtered their king that the unequivocal victor was Henry VIII. The Tudors certainly thought so, and, as you might expect, it took Scotland decades to recover from the reverse. However, if left to go the distance, disputes can and frequently do conclude unexpectedly and the supreme irony of Flodden is that when the Scottish and English thrones united after the death of Elizabeth 1, it was James Stewart, the bloodline of James IV, and not Henry VIII, who took both crowns.
Simon Catterall, Partner, Regulation and farming team
