Cooperation has been defined as the process whereby two or more people or organisations work together for their mutual benefit as opposed to working against one another for their own gain.
The mules in the picture above are joined together by a rope but they work out that a measure of cooperation is required if they both want to eat the food from the piles at either side. In other words, for at least part of the time, they need to face in the same direction and go together towards the food rather than confronting one another at every moment.
The parties to a dispute will find that if they cooperate about how the case can be managed, they will usually find that the process is completed much more smoothly and more cost effectively (cheaply) than if they argue over every little nuance and issue. This emphatically does not mean that the parties should collaborate with one another to the detriment of both but does mean they can and should discuss ways in which the dispute may be more efficiently managed to the mutual benefit of each other. Even if the matter has to go to court to be decided by a judge, the cost of that process in monetary terms and in personal wear and tear is likely to be considerably less than if they have previously argued about every dot and comma along the way.
The courts and those who frame the rules by which litigation is conducted on both sides of the Atlantic recognise the force of this position and require the parties to a dispute to meet and confer in accordance with Rule 26(f) in the USA and to comply with CPR 31.5(3-8) over here and in particular to attempt to agree the ambit of disclosure in advance of the case management conference.
It is at this time of the year that the Georgetown UniversityLaw Center’s Advanced e-Discovery Institute holds its annual session in Washington DC. This year, Craig Ball who writes regularly on E-Discovery and computer forensics, is teaching the virtues of cooperation in practice.
Written in his own entertaining and particular style, Craig’s recent post on this subject contains a list of questions which the faculty will be addressing at the conference.
He introduces the subject by confessing that he originally had doubts about teaching cooperation to a bunch of lawyers because it brought to mind the old caveat about trying to teach a pig to sing (it wastes your time and it annoys the pig)!!
However, having read the article and the list of questions, it is hard to disagree with Craig’s conclusion that
“we don’t cooperate and promote transparency to help the other side. We do it because of the genuine and significant benefits it affords our side. It allows us to move forward with greater safety and certainty, conserves money and time and forestalls misdirected effort. Moreover, cooperation supplies useful intelligence about an opponent’s knowledge, capabilities and expectations. Finally, cooperation builds trust, and trust fosters the ability to secure concessions and resolutions.”
Parties to disputes should take this to heart. If they do not, they will fail to realise the benefits which cooperation can bring and they may well incur the sanction of the court and the wrath of the client.