Scotland is famous for its innovation and willingness to try to address the challenges of modern life through creative thinking. Despite this, in the past few years in Scotland, there has been a cautious approach to mediation and other forms of consensual dispute resolution. However, mediation in Scotland, once closely associated with only family disputes, is now increasingly being chosen by those in civil and commercial disputes as their preferred option for dispute resolution. Prompted by recent announcements and recommendations by the Scottish Executive and the Scottish Parliament, along with research showing the many detrimental side-effects which prolonged conflict has on businesses of all sizes and an awareness of the positive experiences in other jurisdictions, there can be little doubt that Scotland’s business and public sectors are beginning to embrace more consensual methods for managing their differences. A growth of 100% in mediation in the commercial, public and professional sectors has been reported in the past year .
Speaking at a Conference in November 2003, David Lammy MP, Parliamentary Under-Secretary for the UK Department of Constitutional Affairs, announced that over £17 million has been saved across UK government departments since 2001 as a result of the government’s commitment to using mediation and other forms of consensual dispute resolution. He reported that, “The success of mediation, and other forms of ADR, in resolving disputes is not in question. The issue is about the proper relationship between ADR and the courts. We have had a journey to travel. The Government is now seriously committed, putting money into court-based schemes around the country, to using ADR for its own disputes. The engine is on and we are moving into a new dawn, to solve disputes in a more harmonious way”. The Scottish Executive has echoed the UK government’s policy on the use of mediation and other forms of alternative dispute resolution in a guidance document issued by the Scottish Procurement Directorate in October 2003. “ADR will be considered and used in all suitable cases and litigation should usually be the last resort.”
The Civil Justice Department has stated that “The Scottish Executive supports the use of ADR where appropriate and is keen to encourage the use of methods of dispute resolution which offer advantages over court-based processes in terms of speed, cost, reduction in conflict and the preservation of relationships. ”
The Scottish Parliament itself has supported the increased use of mediation, particularly in relation to issues of access to justice. The Deputy Justice Minister, Hugh Henry MSP, recently said that, “mediation and dispute resolution have a substantial role to play and can be developed much further beyond what we currently provide.”
In November 2003, the Justice 1 Committee of the Scottish Parliament heard evidence on the use of alternative dispute resolution in civil and commercial matters. After a full debate which included discussion of the benefits of the mediation process, the use of mediation in Scotland, England and Wales, Europe and the United States, training, regulation, standards, resources and funding, court rules and schemes, and the effect which using confidential processes might have on the setting of future legal precedents, the Justice 1 Committee responded officially to the European Commission’s Green Paper on Alternative Dispute Resolution in Civil and Commercial Matters.
The Committee states that, “The Committee was struck by the potential benefits of mediation and other forms of dispute resolution.” It concludes that, “During this short inquiry it has become evident that ADR could offer substantial benefits and savings for the people of Scotland, commerce and public bodies if utilised consistently throughout the country.”
And that must surely be the aim. Although such positive signs are encouraging, the challenge is to continue to raise awareness in Scotland of the benefits of mediation, and other consensual dispute resolution processes, within the business and other communities. More and more legal professionals are seeking training that will allow them to advise their clients of the increasing number of options available to them, and then go on to represent their clients in mediation, if required. Other professionals who are regularly involved in disputes, including accountants, architects, quantity surveyors, human resource managers and medical professionals are doing the same and learning the skills involved in mediation by training to become mediators themselves.
Let us hope that our small country, renowned for its innovation, will increasingly embrace mediation and continue to develop its ability to manage and resolve differences collaboratively.