A little humility goes a long way for the best litigators - Brent Haywood

I am what is optimistically called a Dispute Resolution lawyer. It’s a nice way of saying that I’m a litigator. Put simply, I represent people and organisations in conflict.

Much of that work revolves around our rights, and we live in a world where people have never been more aware of what they are, or what they believe them to be.

In my field, there is a growth of cases where rights clash. Circumstances where we may be called in to advise can be broad, from commercial conflicts, to religious groups excluded from public buildings to those challenging entertainment licensing restrictions.

So, when your rights bump into my rights, what do we do?

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Brent Haywood is a Partner, LindsaysBrent Haywood is a Partner, Lindsays
Brent Haywood is a Partner, Lindsays

The Equality Act of 2010 and the European Convention on Human Rights have become the totems to which we turn.

Trouble is, these laws can be hard to understand and apply. Phrases such as “protected characteristics” and "human rights” are tossed into battle, sometimes with little understanding of what they mean.

When interests or rights collide, what can I say and do? What can others say to me? When might the law punish me - or protect me?

Lawmakers try to address these questions by making more law. I find that does not always help. Often well-intended legislation merely creates more complexity, sometimes leaving the public perplexed and sceptical.

The Hate Crime and Public Order (Scotland) Act was passed in March 2021. Due to its complexity, it has still not been brought into effect. It is becalmed, and some question whether it will ever be implemented.

From a legal perspective, considering the practical effect of this law is interesting. Take the contest to choose a new SNP leader to replace Nicola Sturgeon as First Minister.

There has been much discussion about how social media has fuelled a cocktail of conflict, some reported in our mainstream media. Ironically, it seems to me that some of the vitriol could fit squarely within the definition “hate crime” under the Act.

It feels we are tangled in a web of Delphic law that tells us what our rights are. Yet, when it comes to discussing them, we end up shouting at each other like fans at opposite ends of a sports stadium.

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This sometimes does not get us very far in reaching a resolution. If legislation or courts are not the answer, what is?

Here’s my suggestion: act with a measure of grace. The ablest litigators know how to talk to each other, even when conflict is hot. They will try to solve their clients’ disputes without leaving it to the judge.

Perhaps we can turn to a very effective tool which is much underrated: humility.

Humility was seen as a weakness by the ancient Greeks and Romans. Strangely, it is a word often used by politicians upon taking office. I think it is usually misapplied. A humble person can still hold strong moral, political or commercial convictions without being weak.

You might have a strong position in your dispute, but a little humility might let you unlock it.

Australian writer John Dickson says: “Humility applied to convictions does not mean believing things any less. It means treating those who hold contrary beliefs with respect and friendship”.

Humility can allow those who profoundly disagree to co-exist and find solutions.

Mediators and the ablest litigators all know the secret power of humility. When deployed, careful people can still disagree - but disagree agreeably.

Brent Haywood is a Partner, Lindsays