A few choice judicial comments illustrate where we are. In 2007 four of Scotland’s Sheriffs Principal (senior judges of the second civil tier) published a response to a consultation on court rules designed to encourage mediation. Their opposition was trenchant. They said: ‘What is the mischief or failing in our current system that requires to be addressed?’, before adding this swipe at another jurisdiction: ‘in America the volume of litigation was so high that the only way the courts in some states could cope with the number of cases was to restrict access to the courts by requiring that parties endeavour to mediate their disputes’ [Emphasis added]. 14 They then turned their sights on England and Wales, contrasting its clogged justice system with the minimal delays, costs and inconvenience in Scotland and describing mediation as an ‘expensive barrier’15 to access to the courts.
What of more senior judges? In England and Wales Lord Woolf provided significant leadership in encouraging the use of mediation following the reforms that bear his name. Scotland’s two most senior judges are those who sit in the UK Supreme Court, the final court of appeal in civil matters. One of the first two, now deceased, was Lord Rodger, a noted Civil Law scholar. Addressing a conference in 2008 he said: ‘society actually needs litigation... Unless there continues to be a stream of litigation with decisions of high quality from the courts, then individuals and businesses will lack guidance on all kinds of everyday situations.’16 He spoke of two farmers who had taken a case worth £3,000 all the way to the House of Lords (it is hard to imagine their combined legal expenses being less than £1,000,000): ‘The parties actually deserved not criticism for failing to settle, but the gratitude of anyone who advises consumers... Whether they realised it or not, the parties were performing a considerable public service.’17 We hear echoes of the story that permeated my legal training: our courts need good, meaty cases to develop the law.
Another Scottish judge, Lord Hope (then the Supreme Court’s Vice President), pitched in as well. In a 2011 speech he endorsed Lord Rodger’s suspicion of mediation’s proponents, asserting ‘our courts and tribunals do indeed provide the best vehicle for obtaining justice.’ In support of this he cited ‘the risk of under-settlement’ and the older chestnut of ‘developing the law... Where would we have been without Donoghue v Stevenson?’18
Lord Rodger’s replacement on the Supreme Court, Lord Reed, has taken a similar line, describing the ‘undue pressure’ applied by English courts to get litigants to mediate and the negative impact on judicial precedent. He also stressed that ‘it would not be right to require persons who wish a legal solution of their dispute to participate in a process which is far from pure in its application of legal principle.’19
These few examples may indicate nothing more than slightly conservative judicial attitudes: so far so normal. Noting a similar phenomenon in parts of the USA, Frank Sander has proposed a ‘Mediation Receptivity Index’ to understand why some states seem much more receptive to mediation.20 A mediator friend who moved to New York was told that it is ‘not a mediation state’.
Nonetheless, the influence of local legal culture, and in particular our allegiance to the idea of a Civilian heritage, seems to provide a deeper and more plausible explanation for the anti-mediation sentiment in my jurisdiction. When it comes to the kind of radical innovation presented by mediation, it appears that the instincts of Scotland’s lawyers place them closer to Borbély’s France than either the USA or England & Wales.
If this hypothesis is correct, where does it leave us? In one sense exactly where we were before. Some jurisdictions (in the USA as well as Europe) seem deeply disinterested in mediation’s attractions. Enthusiasts may find this frustrating, but the precise cause is difficult to pin down. The incentives to use mediation seem to exist in similar measure in most jurisdictions: litigation’s costs, delays and general frustrations are hardly unique to the USA.
To use the language of empirical research, if we have broadly similar inputs (people’s disputes) and background conditions (the limitations of legal systems) leading to very different outputs (the rate of use of mediation), in seeking an explanation we need to look at other variables. To date, mediation research has typically focused on structural factors such as cost, availability, awareness and the role of lawyers as gatekeepers.21 Little consideration has been given to the background ideology of legal systems. Borbély suggests that a Civilian view of litigation may account for the minimal use of mediation in France.22 While this is an attractive hypothesis, there are numerous other differences between England or the USA and France that may account for their distinctive approaches: not least their language, history and systems of government. If Scotland, however, with all its historical and practical similarities to England, displays a similar lack of enthusiasm for mediation, it becomes more plausible that the key variable is allegiance to the Civil Law tradition.
One way of understanding Civil Law and Common Law systems is as legal cultures. Of course ‘culture’ is a term with multiple and contested meanings.23 Geertz defines it as ‘the structure of meaning through which men give shape to their experience.’24 Here I use the term ‘legal cultures’ descriptively, to convey the distinctive features and practices associated with particular countries. Silbey, citing Friedman, speaks of ‘legal culture’ as ‘emphasizing the fact that law was best understood and described as a system, a product of social forces, and itself a conduit of the same forces.’25 This article seeks to propose two related hypotheses: first, that countries influenced by the Civil Law tradition are indeed less tolerant of alternatives to the formal legal system; and second, that a legal culture’s approach to mediation (in effect an alternative to itself) shines a light on its underlying ideology, in particular the place of legal norms in governing social relations.
Also neglected is the fact that mediation has its own culture. While there is a considerable body of work on the importance of culture in negotiation,26 when it comes to mediation the literature tends to focus on cultural differences between the parties, or between the parties and the mediator.27 Little attention has been paid to the cultural significance of mediation itself,28 a factor that may be particularly overlooked when cultures share the same language: the exponents of mediation may take less care to ensure its applicability where there is no need for an actual translation.
This leads me to speculate about other elements of Scottish culture that may work against the use of mediation: a concern with privacy (‘we don’t want strangers involved in our private business’); a Presbyterian rejection of emotionalism; simple conservatism; and another factor identified by Genn and Paterson – a ‘general sense of powerlessness’ much more pronounced in Scotland than in England and Wales.29
I must confess to raising questions rather than offering answers. It is human nature to try to make meaning from inexplicable events. The challenge for the academic community is to look more closely at the impact of local legal culture, in particular allegiance to the Civilian or Common Law legal family, when attempting to account for differences in ‘mediation receptivity’. It is beyond the scope of this article to consider other legal traditions: the reception given to mediation in, say, Islamic or Chinese legal cultures is also likely to vary according to their underlying ideology.
‘How we do things round here’ is a compelling argument for most lawyers. The myths we are taught at Law School have a lasting grip on our imagination. Whether Scotland is in fact a mixed, still less a Civilian, system may matter less than that it believes it to be so.
11 Private correspondence with the author, 2011. Borbély has revised this view: he conceded that the true figure is that, once a court or tribunal has been seized, a decision will be made in 45% of cases. This still contrasts strongly with the widely accepted figure of 5% or below for Common Law jurisdictions: see, for example, Marc Galanter, ‘The Vanishing Trial: An Examination of Trials and Other Matters in Federal and State Courts’ Journal of Empirical Legal Studies, Vol.1, (3)  459–570, (citing a rate in the US of 1.8%); although see Dingwall and Cloatre, 2006 (suggesting that, by 2004, the rate in the English High Court was approaching 12%, while that in the County Court was nearer 4%).
12 Jury trials for civil matters are extremely rare in Scotland
13 ‘the set of beliefs by which a group or society orders reality so as to render it intelligible’ Collins English Dictionary, accessed from http://www.thefreedictionary.com/ideology on 7/7/12
14 http://www.scotcourts.gov.uk/sheriff/rules_council/consultation/docs/ADRDocs/Response_Sheriffs_Principa l_Bowen_and_others.pdf p.2
15 Ibid, p.5
16 Lord Rodger ‘Civil Justice in Scotland: Where Have We Come From, Where to Next?’ on file with the author, p.4
17 Ibid. p.4
18 Lord Hope of Craighead, speech at official opening of Digby Brown Solicitors’ Glasgow Office (6 September 2011) www.digbybrown.co.uk/index.php/site/news_main/glasgow_opening
19 Lord Reed, “The Civil Court and the Future of Dispute Resolution” (November, 2007) available at http://www.scottish-arbitrators.org/z_pdf/articles/the_civil_court.pdf
20 Frank EA Sander ‘Developing the MRI (Mediation Receptivity Index)’
21 Jane Lewis The Role of Mediation in Family Disputes in Scotland. (Edinburgh: Scottish Office, 2007); Gwyn Davis et al, Monitoring Publicly Funded Family Mediation (London: Legal Services Commission, 2000; Lisa Webley, Abrams, P & Bacquet, S, Evaluation of the Birmingham Court-Based Civil (Non-Family) Mediation Scheme, (London: Department for Constitutional Affairs, 2006); Prince, S & Belcher, S (2006) An Evaluation of the Effectiveness of Court-based Mediation Processes in Non-Family Civil Proceedings at Exeter and Guildford County Courts, available from www.dca.gov.uk/civil/adr/fasttrack-mediation-guildford-exeter.pdf; Genn, H, Fenn, P, Mason, M, Lane, A, Bechai, N, Gray, N & Vencappa, D, Twisting Arms: Court referral and court linked mediation under judicial pressure (London: Ministry of Justice, 2007)
22 Ohio State Journal on Dispute Resolution (2006-2007) 599-618
23 Terry Eagleton, The Idea of Culture (Oxford: Blackwell Publishing, 2000)
24 Clifford Geertz, The Interpretation of Cultures: Selected Essays (New York: Basic Books, 2000) p.312
25 Susan S Silbey, ‘Legal Culture and Legal Consciousness’ in International Encyclopedia of Social and Behavioral Sciences (New York: Elsevier, Pergamon Press, 2001), p.8624
26 Hofstede, G, Culture’s Consequences: International Differences in Work-Related Values (Thousand Oaks, California: Sage, 1980); Kimmel, 2000; Docherty, 2004; Wanis-St. John, 2005
27 Augsburger, 1993; Shah-Kazemi, 2000; LeBaron, 2003
28 Although see John Paul Lederach, Preparing for Peace:
29 With 23% accepting a judgement for this reason compared to 6% south of the border, Genn and Paterson, 2001, p.254