When I studied law at Glasgow University in the 1970s it was a truth universally acknowledged that Scots Law was a ‘mixed system’. This, explained our professors, meant that it had its roots in the European Civil (or Roman) Law, but that this tradition had been overlaid with English Common Law, principally because of legislation from an English-dominated parliament and jurisprudence from an English-dominated House of Lords (the highest court of appeal in civil matters for the whole of the UK). Lacking its own Parliament to legislate, Scots law had been in danger of assimilation during the high-water mark of Unionism in the 19th Century, when it was fashionable in some quarters to call the country North Britain. Even today (the 1970s), went the story, this anglicising corruption was proceeding unabated because Scotland, being a country of a mere five million inhabitants, could not generate enough disputes to advance the law. Over the border, the fifty million souls of our larger English neighbour were litigating furiously, providing Lord Denning and other crusading judges with ample opportunity to set, and break, precedents. And, as we were taught, the Common Law is judge-made law.
To a hammer everything looks like a nail: and to litigators most cases look ripe for litigation. But my generation entered the Scottish legal profession with an additional motivation: if a case runs its full course, it is not just good for our pockets, it is good for the law and good for the country.1 Justice is served and the shackles of English cultural domination are thrown off at the same time.
Thanks to Douglas Osler2 and Kenneth Reid3 I am now aware that this story, like so many cherished myths, serves some interests more than others. It was most powerfully articulated by TB Smith, one of Scotland’s foremost legal scholars, in his Hamlyn Lecture of 1961.4 Unsurprisingly this view appeals to Scottish nationalists, who also tend to articulate their campaigns in terms of plucky little Scotland shaking off the yolk of English imperial domination. It may appeal to South Africans too, for according to Osler, ‘In South Africa Smith found what he was looking for: a people who, incredible though it may seem, had succeeded in hating the English even more than do the Scots.’5
However, it was a story that seemed to lack practical consequence for most of my career. Scottish academics may teach about Civilian roots, but as far as day-to-day lawyering goes, Scotland very closely resembles a Common Law system.6 There is no Civil Code; the courts are staunchly adversarial; our judges are bound by stare decisis. Equally significantly, great tranches of contemporary law are shared with the rest of the UK: employment, tax, company and commercial, insurance, administrative and consumer protection law for example. In these areas precedents can be and often are set in London or Leeds.
So the Civil/Common Law debate7 was not something to which I had devoted much thought, particularly as, for the last twenty years, I have practised as a mediator rather than litigator. However, I did often puzzle over what I had come to think of as a form of ‘Scottish exceptionalism’.8 Why, in contrast to almost all other Common Law jurisdictions, is Scotland so resistant to mediation? The USA, Canada, Australia, New Zealand and, latterly South Africa, Hong Kong and India seem to be leading the charge. In the late 1990’s England & Wales had its ‘Woolf Reforms’, contributing to London’s development as an international mediation centre. In contrast, Scotland’s 2009 ‘Gill Review’ of civil justice was lukewarm.9 Considerably fewer than 1% of civil matters are dealt with by mediation, and if family matters are discounted this number looks closer to 0.1%.10 Scottish judges frequently take the opportunity to speak out publicly against mediation (see below).
It was therefore something of a jolt to read Adrian Borbély’s description of French legal attitudes to mediation. It is worth quoting Borbély’s words: ‘The French judicial system works like an attracting magnet: once a case enters, it has a 95% chance of finishing by a court decision (or legal bargaining aiming to anticipate the said decision). In America, the system works like a repelling magnet: when a court is seized, the case has a 95% chance of being settled outside the courtroom and the system has integrated numerous tools to do so (mediation, conciliation, pre-trial conferences, mini-trials, etc).’11 Perhaps Scotland’s civilian roots are significant after all. Or rather, given that the empirical reality of our court system is more like America (with fewer than 5% of cases ending in a formal hearing12), might the story I describe above be acting as an ideology13, a set of beliefs about the world that make mediation a bad idea and litigation good?
1 Although, as Robert Dingwall and Emilie Cloatre point out, ‘the creation of precedents and the creation of law, through the civil justice system, is not perceived by government as contributing to the general welfare in the same way as state-provided education or health care’ see Dingwall & Cloatre, ‘Vanishing Trials: An English Perspective’ Journal of Dispute Resolution,  51-70, p.67
2 Douglas J Osler ‘Fantasy Men’ Rechtsgeschichte Vol 10 , 169-193
3 Kenneth GC Reid ‘The Idea of Mixed Jurisdictions’ 78 Tulane Law Review, Vol.5 [2003-2004], 5-40
4 See Osler, 2007
5 Osler, 2007, p.175
6 Alan Rodger ‘Roman Law Comes to Partick’ in Robin Evans-Jones (Ed.), The Civil Law Tradition in Scotland (Edinburgh, The Stair Society, 1995) p.209 ‘Nowadays the courts have to grapple with Roman law only rarely.’
7 Or ‘bellum juridicum’ Osler, 2007, p.175
8 A term originally plagiarised from ‘American exceptionalism’ to describe our cultural or literary history – ‘Wherefrom, then, the origin of this Scottish exceptionalism? Simply put, we were the first literate nation. The men and women of Scotland could read and write when the overwhelming bulk of European society could not.
No wonder, then, at the scale of our impact on literature. No wonder that we created the first secular mass culture.’ See http://www.arts.gla.ac.uk/ScotLit/ASLS/SWE/TBI/TBIIssue1/Editorial1.html
9 Charlie Irvine, ‘The Sound of One Hand Clapping: Gill Review’s Faint Praise for Mediation’ Edinburgh Law Review, Vol. 14, No. 1, pp. 85-92, 2010
10 See Charlie Irvine ‘Civil or Common Law: What are the sources of Scottish judicial attitudes to mediation?
http://kluwermediationblog.com/2011/10/13/civil-or-common-law-what-are-the-sources-of-scottish-judicialattitudes-to-mediation/ ‘In 2008/9 the number of court actions raised with a value exceeding £5,000 (5713 Euros) was just over 50,000. At the same period Scotland’s leading commercial mediation provider (Core Solutions) reported being involved in 130 mediations over two years between 2007 and 2009. Even if some additional mediations were taking place, the total still represents a tiny fraction (less than 0.1%) of the courts’ caseload.’