Previously published in the European Lawyer July/August 2004
History has traced a long path of horror and torture before reaching today’s rather gentler systems of dispute resolution. Patricia Martin takes an irreverent look at the past methods used to determine right from wrong and discusses how, while the techniques may have altered dramatically, the view of lawyers has not.
"All lawyers are parasites" was the response of the CEO of a multinational trading house upon my being first introduced to him at an annual Trade dinner at the Grosvenor House Hotel in London some years ago. Normally when faced with such elegant small talk I tend to make light of those sentiments by telling a joke against my own profession. But for whatever reason on that occasion I felt irritated enough to attempt a defence on behalf of the profession as a whole. I suggested that a comprehensive system for the administration of justice based on a highly motivated and skilled legal profession was the true mark of a civilized nation, and that as a society we had certainly come a long way from the time when we merely hit each other over the head with clubs in order to settle our differences. I would like to say that my eloquence was sufficient to change his view on the subject forever, but instead I suspect that he thought of me thereafter as both a flaky upstart as well as a parasite. He certainly made his hurried excuses at the time and moved on.
I have had many occasions since then, time to reflect on the point I was attempting to make. For example, I believe we have reached a more civilized world order with parties adopting modern day mediation rather than litigation as their preferred form of dispute resolution. In mediation the emphasis is of course on resolving the dispute itself, rather than determining who is right or wrong. This can only work in a society that is sophisticated enough to recognise that settling the dispute in an "amicable" way is the overriding objective.
It has not of course always been thus. Since man uttered his first grunts he has found reason to find fault and have disputes with his neighbours, which in turn has led to the need for some form or another of dispute resolution. Without the veneer of civilization, brute force generally sufficed. However once man decided to work within a social framework that involved the cooperation of others, then it became necessary to adopt certain rules in order to govern disputes and their resolution. The rules were either God or man made.
An historical review of some of the quainter forms of dispute resolution down the ages illustrates my point nicely.
Did you know, for example, that trial by combat was only abolished from the statute books in England in 1801, although it had not been very popular or invoked since the 13th century? This form of dispute resolution provided a whole new meaning to the concept of "blood on the carpet". Now clients generally only require sweat and tears from their legal champions. Trial by combat involved a battle to the death in front of a judge, with the winner being generally the last person left alive. The theory was that God would always be on the side of the righteous. The judge in that case then no doubt doubled up as the undertaker.
The English have however always been class conscious – even when it came to the issue of duelling. Serfs could not challenge a free man, nor could a bastard challenge a man of legitimate birth. Two or more bastards could however fight (which perhaps explains the recent antics of English football hooligans in Portugal). A leper could not seek combat with a healthy man, but no doubt two lepers could fight to the death or at least until both had lost their remaining marbles along with their digits. A brother could not challenge his brother to combat in civil cases, but he could in criminal ones. In Flanders, free men who married women beneath them lost their status rights to combat after the passage of one year. No doubt they had by that time been well and truly polluted by their wife’s inferior genes.
The Germans apparently imposed broader limitations, with much more emphasis being placed on the rank of the challenger and the accused, with the higher ranking person being given the right to refuse combat with a lesser mortal without incurring any penalty. If you were a 40 kilo weakling in those days – then it certainly helped if you were high born. In a similar vein native home grown individuals were granted the right to refuse if the claimant came from a different territory.
Once battle was begun no withdrawal was permitted, without stiff fines being placed upon the individual backing out. In cases of treason, only trial by combat was allowed. The variations were endless throughout Europe.
The same underlying theory that God would intervene on the part of the righteous also lay at the heart of the concept of trial by ordeal, involving the use of fire or water. In a fire ordeal the accused would be required to hold a hot iron bar in their hands and walk nine paces, before their hands would be bandaged for three days. If after three days the wounds had healed then the accused was innocent. If the wounds had festered – then clearly the person was guilty. Either that, or the bandages had been unclean in the first place.
A less excruciating but, eventually, equally fatal ordeal was that of the bier. There was an ancient belief that the dead could identify their killer. There were various ways of testing this, but, in England, it was common for the accused to be made to approach the bier on which the corpse lay. In front of witnesses the wounds of the victim were examined to see if they had started to bleed again. If they did then the accused’s guilt was proven. This telling of tales by the dead was a theme recorded by Shakespeare in Richard III:
"O gentlemen see, see! Dead Henry’s wounds
Open their congealed mouths and bleed afresh!"
Trial by water was an even more peculiar concept, since it involved the notion that only the guilty could float whereas the innocent would drown. Definitely a case of no win and certainly no cure. Many a good witch no doubt met her watery end thus.
Dunking stools and chiding rocks were particularly favoured by husbands (hen pecked or otherwise) to resolve the age old dispute of who ruled the domestic roost in Medieval times. You can still visit the chiding place at "Chiddingstone" in Kent where "scolding women" were left chained to a large rock formation on the edge of the village until they learnt how to behave properly.
As to the admissibility of evidence in years gone by, no wonder uncorroborated evidence has subsequently been viewed with some caution when an accuser could once successfully prove his case merely by swearing an oath. Torture was frequently enlisted to extract confessions of guilt and the sort of lie detector tests in regular use in the Middle Ages left as much to be desired as they sometimes do today. One such test involved the accused being asked questions while their mouths were full of dry bread. If they managed to answer without choking they were telling the truth. If they choked clearly they were not. In this case saliva, rather than God was understood to be the intervening factor, since it was believed that when a person lied their mouth would go dry. The Chinese adopted a similar process involving dry rice flour and Arab Bedouins made the accused lick a hot iron. Though what they could have been doing with an ironing board in the middle of a desert is anyone’s guess.
Samuel Pepys wrote about a certain test for virginity involving a length of cord placed around a woman’s neck. While I am not sure of the "scientific" basis for this one, I expect Mr Pepys had a lot of fun testing the theory. By the way, even though Mr Pepys did manage to write an exceedingly good diary, it was he who once remarked, "Whilst I do not wish to speak ill of anyone behind their backs, I do believe that man is an attorney."
It was however Shakespeare who wrote in Henry IV, "The first thing we do, lets kill all the lawyers." That sentiment has been embraced down the ages in times of revolution and civil disorder. Lawyers are by definition seen as pillars of the "Establishment", there to remind those who would put themselves above the law, of the consequences.
Lawyers do not make the law, they merely interpret it and then argue endlessly about what it means. That is our traditional job. But it is a role, which in my view is under threat in civil matters from the creeping process of modern ‘mediation’.
Mediation works not by determining who is right and who is wrong, but by the application of common sense requiring both sides to reach a negotiated compromise that they can live with.
Mediation as a vehicle for resolving disputes has been available for thousands of years. The Old Testament describes Jacob and Laban mediating their dispute over grazing for their sheep, and I guess King Solomon would probably qualify automatically for membership of CEDR as an accredited mediator given his previous form.
In a number of non-Western cultures such as China and Japan, mediation has historically played a key role particularly because of its focus on preserving relationships through the consensual resolution of disputes. While we in the West had perhaps forgotten the benefits of mediation in the pursuit of being proved ‘right’ it would appear that parties are now returning to mediation as a preferred forum. Perhaps this is being influenced by the Courts themselves being increasingly critical of the high cost of litigation coupled with the possible destruction of a commercial relationship where the winner takes all; or perhaps it is down to the knowledge of a civilized society that the most important aspect is to resolve the dispute itself. Whatever the reason, I have now seen cases settle via mediation in London that I had believed were incapable of amicable resolution. This was hardly surprising when both parties had started the process by insisting that each was right and both had refused to budge. Admittedly it was only when we got past 10 or 11 o’clock at night when thirst, hunger and boredom kicked in, did the posturing disappear and the negotiations commence in earnest. This only goes to show that there are elements of trial by ordeal still with us and I would be wrong to dismiss the "old methods" entirely. I can certainly think of a few men of my acquaintance that I would happily chain to a chiding rock somewhere in order for them to learn how to behave properly.
Perhaps I should not have tried to prove to my CEO all those years ago that he was wrong to hold such sentiments and I should have settled for telling him a joke instead. Which reminds me of the difference between a lawyer and a tape worm. While one is a bottom-dwelling blood sucker, the other is a parasite.
Patricia Martin is a partner in the London office of US firm Kilpatrick Stockton LLP
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