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Break point

1 July 04

A survey of the growing range of disputes in Scotland that are moved forward by solicitors' strategic use of the mediation process

by Ewan Malcolm and others

Lawyers negotiate day in and day out. Most are skilled, having learned through hard-earned experience. Some are well trained in negotiation and understand that persuading the other side is different from persuading a court.

But what happens to the cases where, for whatever reason, usual negotiation is not possible, economical or just gets stuck? Are the only options fight (in the court) or flight (by giving up)? Not so. The mediation process can be used as an additional dispute resolution tool in, to name a few:

  • Planning and environmental disputes
  • Primary healthcare complaints
  • Conflict leading to homelessness
  • Disagreements between parents and local authorities
  • Police complaints
  • Anti-social behaviour allegations
  • Insurance claims
  • Employment law disputes

Mediation services are already established and available in most parts of Scotland in the areas of:

  • Neighbour and community disputes
  • Family disputes about children and assets
  • Education, particularly in relation to special needs
  • Between victims and accused in criminal matters
  • Civil legal matters such as contract disputes
  • Personal injury and professional negligence claims
  • Workplace conflict

Understanding the potential

Definitions are often useful: mediation is a way of resolving disputes which assists the people involved to reach an agreement with the help of an impartial third party — the mediator.

The parties in dispute, not the mediator, decide the terms of any settlement. If the parties need or want a judgment, then adjudication by a court, tribunal or arbitrator is where they should go.

Mediation is a problem-solving procedure and its essence is finding a solution that all the parties can live with. It complements the negotiations of the parties and their representatives by offering another option before taking up arms in the courtroom. The process of mediation is voluntary, so both parties must have a desire to resolve the problem in hand. Sometimes people need to be persuaded that they can indeed try to resolve their dispute themselves and that the outcome may be much more to their liking than a decision imposed upon them by a third party.

Mediators avoid taking sides, making judgments or giving guidance. In this way mediation is different from processes like advocacy, counselling, arbitration and giving advice. The mediator is responsible solely for developing effective communication and building consensus between the parties. Their skills can open blockages in understanding which have prevented resolution of the issues in dispute.

A flexible process, mediation can take place face to face or by a series of private meetings. These meetings are usually all completely confidential and cannot be used later in court if the parties do not resolve the dispute through mediation. At the end of the process the parties very often agree on a settlement for the future.

ADR – Another Drop in Revenue?

Mediation is one form of ADR. The old (tired) joke goes that “lawyers think that ADR stands for Another Drop in Revenue”. The quip reflects the general perception of non-lawyers that the legal profession think that mediation is yet another way of cutting the ground from under their feet.

There is no doubt that in civil courts across the English speaking world, where court based mediation is introduced, there has been a change in the way that cases are handled. As Sheriff Principal Macphail recently said to the in-court mediators in Edinburgh, “You are our unseen colleagues… you are now responsible for the resolution of a very significant number of the disputes that come before the sheriff’s civil court.”

At the First Scottish Mediation Conference last year, Chief Judge Bell from Maryland, USA said: “I must admit that when the judiciary first became interested in mediation, our major concern was docket control. Many of our courts are severely overburdened with litigation, and we hoped that mediation would take cases off of the court’s docket.” He went on to explain: “Now, we have come to recognise that in addition to docket control, mediation can result in better and more creative solutions than can be achieved in court.”

However, Judge Bell, one of America’s top judges, warned mediation is not a panacea. It isn’t appropriate if a party wants a public airing of a dispute, wants to set or challenge a legal precedent, or in cases involving serious violence.

“Mediation will not work in every case,” he stated. “However, in most cases, it is worth trying. Even when agreements are not reached, the issues in the dispute may be streamlined, and the parties may develop a better understanding of one another. And when mediation is unsuccessful the parties can still go to court.”

Lawyers’ concerns about mediation are probably more about change and different ways of working rather than loss of income. There are now a number of easily available sources of information about mediation for practitioners to get up to speed. However, there is no substitute for trying it out with appropriate cases. It may turn out that ADR actually stands for ‘Awkward Disputant Relents’.

The shape of things to come

Cathy Jamieson, Scotland’s Justice Minister, said last year: “Considering alternative forms of dispute resolution is important. Many cases come to court that could, if people had been given the right support and advice at an early stage, have been resolved more quickly and efficiently.”

The Executive already provide support and funding for a range of mediation and advice services. They are actively considering what further action might be taken to encourage greater use, and will look at the recent English costs cases and the prospects for similar developments in Scotland. In February this year, Ms Jamieson told the Parliament, “The Executive believes that mediation can contribute to the effective and efficient administration of justice in the civil courts… We strongly support its use and are keen to encourage it where feasible and appropriate.”

Carrot and stick in England

In February 2002 costs were denied to a successful party because it had earlier bluntly refused to mediate (Dunnett v Railtrack plc [2002] EWCA Civ 303).  In the earlier case of R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935, Lord Woolf and the English Court of Appeal made very plain their view of the failure to use ADR: “The importance of this appeal is that it illustrates that… insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible.” He continued by saying the parties should be focused on the future instead of arguing about the past. “Today [enough] should be known about ADR to make the failure to adopt it, in particular when public money is involved, indefensible.”

In the recent case of Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576, a clinical negligence claim, the claimant’s solicitors repeatedly proposed mediation to the defendant Trust, which repeatedly declined because it correctly predicted that it was not liable. The judge declined to deprive the Trust of its costs on winning, finding ‘somewhat tactical’ motives on the claimant’s solicitor’s part. Dyson LJ said: “All members of the legal profession should now routinely consider with their clients whether their disputes are suitable for ADR.”

The judgment, however, distinguishes between cases where a judge recommends mediation and where a proposal to mediate is made by one party to another without any judicial encouragement. This decision gives some comfort to those who are concerned that the mediation process could be used as a device by parties intent on delay or prevarication.

Scotland has not made changes like the Woolf reforms of the Civil Procedure Rules in England and Wales. The Sheriff Court Rules Council has recently set up a Mediation Committee to investigate whether the court should encourage the parties to use additional dispute resolution procedures, and if so, in what circumstances. Chairman of the Sheriff Court Rules Council, Sheriff Principal Macphail, commented recently: “It is much too early to say what the Rules Council may recommend, but it is already clear from the experience of the Edinburgh Mediation Service that sensitive and intelligent resort to mediation can produce impressive results.” He went on to say that he would like to see the development of mediation as an option which the court can offer to parties as a constructive way forward.

An additional tool for lawyers

Mediation is an effective means of dispute resolution for any dispute not requiring a judicial or third party determination. By resolving disputes in mediation, parties determine for themselves what is important and, ultimately, the outcome of the situation. While the benefits of mediation vary somewhat depending on the nature of the dispute and model of mediation applied, the question now for Scottish solicitors is how to incorporate this additional tool into their repertoire as trusted advisers.

The Justice Department is currently updating a booklet containing general information about resolving disputes without going to court, and officials are in discussion with the Scottish Mediation Network to examine how best the Executive can support the further development of mediation services and encourage greater use of alternative dispute resolution generally.

Ewan A Malcolm WS is the Mediation Development Officer for Scotland with the Scottish Mediation Network. The SMN office was set up with a three year Community Fund Grant in September 2002. His role is to promote the appropriate use of mediation and aims to move mediation into the mainstream as a widely available and clearly understood option for resolving all forms of dispute in Scotland.
ewan@scottishmediation.org.uk
www.scottishmediation.org.uk
0131 556 1221

Advantage: Edinburgh Sheriff Court Mediation Service

The following case illustrates that mediation can give disputing parties a more satisfactory outcome than the court process could.

Miss G and her future husband decided to give a traditional Scots flavour to their wedding by hiring kilts for all the men in the party. A series of mishaps occurred with the measuring and picking up of the kilts which resulted in some of the menfolk wearing kilts that were ill-fitting on the important day.

The bride’s mother took out a small claim at Edinburgh Sheriff Court for the cost of three ill-fitting kilts. She said the family had not been given proper advice and opportunity to try on the kilts for size. They were particularly disappointed that they had felt unable to include their two year old grandson in their wedding photographs, as his kilt had been “doon to his ankles”. They wanted to make sure that future customers would not suffer the distress and disappointment that they had.

At the mediation meeting Mrs G showed the wedding photos with the menfolk in kilts of varying lengths. The hire company agreed to pay some compensation, although without in any way accepting that they were to blame for the poorly fitting kilts. They also offered a re-hire of a properly fitting kilt for the wee laddie so the family could get some pictures of him for posterity.

When the family were subsequently in the shop to make arrangements for the re-hire they were pleased to see the shop’s new procedures for ensuring that customers hired kilts that fitted properly.

Mediation enabled both parties to retrieve something good from an unfortunate experience: the family got their photos and some monetary compensation and the shop benefited from improving its customer service.

This example is typical of the cases diverted to mediation by the sheriffs at preliminary hearings of summary causes and small claims in Edinburgh. The service has been operating for a number of years, and is efficient and user-friendly. With an 80–90% success rate it has the strong support of the sheriff principal and may well become a model for other small claims courts in Scotland.

Increasingly, solicitors are encouraging their small claims and summary cause clients to attend mediation by themselves. In fact, some 20 Edinburgh and Glasgow solicitors and advocates themselves are on the panel of mediators who provide their services on a pro bono basis to the court service. All are trained, accredited mediators looking for regular experience of conducting mediations.

The Mediation Service is proving to be beneficial not only to the court and to disputing parties, but also to a growing number of members of the legal profession.

Sandra Hawker, Mediation Co-ordinator
Edinburgh Sheriff Court
Mediation Service
0131 220 1092

Mixed doubles: Family mediation at 20

Family Mediation Scotland (FMS) co-ordinates and supports a network of family mediation services across mainland and island Scotland. CALM (Comprehensive Accredited Lawyer Mediators) is the association of family law mediators accredited by the Law Society of Scotland. CALM and FMS work co-operatively, providing family mediation throughout the country.

Family mediation is a voluntary process which enables people undergoing separation or divorce to co-operate in making arrangements for children, finance and property without having to resort to the adversarial route of litigation. Mediators work with parties to reduce acrimony and bitterness, and help parents focus on their children, rather than the differences between them. FMS services also offer special support directly to children to help them adjust to changes in their family: children’s groups, for example, and counselling, contact centres (where a parent who lives apart from their children can spend time with them) and The Peaceful School, a peer mediation programme in schools.

For 20 years family mediation has helped parents build for the future by taking them back to their basic commitment of love and care for their children. It has helped them to renew their role as parents after the pain of their adult separation.

This anniversary year is being marked in a number of ways:

A conference, “Family Mediation 2004 – Back to the Future” was held in Edinburgh on 28 and 29 June 2004. This conference provided an opportunity to celebrate achievements in family mediation, introduce new and significant research findings and help shape family mediation for the future. Speakers and participants attended from Europe, America, Australia and South Africa.

The inauguration of Families Day in Scotland, 29 August 2004. A national art competition was organised to find three winning entries to be produced as free Families Day cards, distributed throughout Scotland through a supermarket chain. The top 100 entries are exhibited at the Scottish National Portrait Gallery from June to the end of August 2004.

Film events in Edinburgh and Glasgow looking at different family structures.

For further information see www.familymediationscotland.org.uk and www.calmscotland.org.uk.

Gay Cox, Family Mediation Scotland  0131 558 9898