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First published by The Scotsman, 8 April 2010
The Protocol for Avoidance and Resolution of Disputes is designed to provide a framework for addressing and resolving differences and disagreements among the four governments. When questions about the powers of the devolved administrations are regularly discussed, and with elections looming over the next 15 months, the announcement is quite remarkable – and timely. It creates a platform to deal systematically with differences that arise and is, in many ways, a model of good practice.
Fundamentally, the Protocol is designed to ensure that differences are dealt with at the lowest possible level, with clear provision for the next stages should resolution not be achieved.
As a general principle, the parties will seek to avoid disputes arising in the first place and, to do so, commit to the principles of good communication and co-operation. The importance of this cannot be over-stated.
It is well recognised that the majority of disputes arise or escalate through unsophisticated or ineffective communication. One only has to consider some of the language in public statements in relation to the BA disputes and others to appreciate how easily, under pressure, antagonistic positions appear to be taken and matters can become inflamed and polarised, impacting adversely on the prospect of settlement.
The agreement on the Protocol is a demonstration of the respective governments' understanding of how disruptive and unhelpful unresolved differences could be within the UK.
The same applies to all complex inter-party arrangements. Communication protocols that anticipate disagreements and seek to manage how parties deal with them can help to prevent the kind of tit for tat escalation we regularly observe. They provide safety valves and processes for continued engagement, even when times get tough.
The Protocol recognises "there may be circumstances … where the UK government and one or more of the devolved administrations are unlikely to be able to agree". However, it seeks to maximise the prospect of agreement being reached and specifically provides for all officials and others involved to fully commit in good faith to achieving agreement if possible.
Where the matter cannot be resolved by officials informally, there is provision for reference to the Secretariat of the Joint Ministerial Committee, established in 2001 to encourage multilateral contact between Westminster and the devolved bodies.
The Secretariat would effectively operate as mediator, seeking agreement on the facts, providing an opportunity for the parties to set out their positions, and facilitating discussion of shared interests, options for resolving the disagreement and criteria for an agreed outcome. The same process is to be followed if the Secretariat cannot facilitate a resolution, with the dispute being referred to the JMC itself, chaired by an appropriate minister who will make further informal and formal efforts to resolve matters.
This model reflects an understanding of the principles set out in the seminal work on negotiation, Getting to Yes. Its co-author, William Ury, visited Edinburgh last summer, addressing a Scotland's Futures Forum meeting.
Sophisticated conflict resolution around the world has, for many years, been based on these ideas. It is encouraging that discussions about the future of the UK are so well grounded. Returning to BA, rail and the trams, there is learning here about the way in which differences can be managed, disagreements addressed and disputes resolved. Even if disputes are resolved, the damage done by public spats may be incalculable.
At a fundamental level, people need to be able to work together. Good business, professional and contractual relationships are critical to effective performance of contracts and duties, and to the delivery of customer-focused services and sustainable brands. The Protocol for Avoidance and Resolution of Disputes makes common sense at many levels.
John Sturrock is the founder and Chief Executive of the Core Solutions Group, Scotland's pre-eminent provider of commercial mediation services. Core is also recognised for its innovative training and coaching in mediation, negotiation and collaborative approaches to conflict and differences. John Sturrock is one of the most experienced commercial mediators in Scotland and has been described in Chambers Guide to the UK Legal Profession as “the foremost mediator in Scotland”, while ranking in the top 10 mediators in the UK.
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