Alternative dispute resolution (“ADR”) has, once again, become a popular topic of conversation within the Scottish legal world. Whilst reference to ADR throughout the judicial system/profession may have grown, in practical terms, the extent to which Scottish ADR is actually utilised is far less than that of our English colleagues.
The increase in popularity for ADR is largely due to the apparent saving in time and expense. The time and expense of proceeding down the traditional court process, either within the Sheriff Court or Court of Session, is well documented.
While there is no doubt that ADR can provide benefits, there remains some doubt within the Scottish judiciary as to how and where these benefits fit in with the current civil system. ADR is considered to be forward thinking and those who recommend it may be considered to be “thinking out of the box”. It is accepted that ADR has an important part to play in today’s modern system - the question though is to what extent that part should be?
Within the profession, it is widely agreed that ADR e.g. mediation will most likely succeed where both parties share the common goal of reaching an out of court settlement - and quickly. This though can often be reached between solicitor and Insurance company in negotiations prior to any court action. In Scotland, the court rules do not currently encourage ADR and therefore there are no expenses issues should a party refuse ADR. This is, of course, contrary to the position in England & Wales, where there has been significant support for the use of ADR/mediation e.g. Lord Woolf.
One exception is the Scottish commercial court. This is a speedier procedure in which the judge undertakes a more pro-active role in assisting parties to reach an early settlement. Ethos and emphasis are on expediting settlement. Indeed, the commercial judge or sheriff can make an order which he thinks will result in speeding up the resolution of the action - including mediation. This is not however a common occurrence and the use of costs as a sanction is rare.
The position with regards the use of ADR/mediation in Scotland was considered by Lord Gill in September 2009 when he prepared a review of the Scottish civil courts.
Lord Gill recognised the value of ADR and felt that greater knowledge was required and information provided about ADR and mediation. He promotes the opportunity for judges and sheriffs to encourage ADR - however he did not consider compulsory ADR to be appropriate. The promotion of ADR would also be aimed at less complex claims of lower value.
The use of ADR is not without criticism. Lord Gill acknowledged the risk that if complex and commercial disputes are resolved by mediation then the development of Scots Law may be harmed.
On the whole, ADR practice in Scotland remains thin on the ground for commercial matters. Currently, mediation, for example, is more geared towards matrimonial matters, neighbour disputes etc. It can be difficult establishing an expert in rural areas if location is a factor.
ADR and mediation are certainly interesting topics and continue to be open to much debate. Lord Gill’s report has yet to be implemented, and whether it will be implemented in its entirety remains a mystery. There is, however, great support for the report and that support will likely apply to a more official place for ADR in our legal system.
What is certain is that ADR in Scotland remains a work in progress!