Some notes following my meeting with Margaret Mitchell MSP, convener of the Justice Committee of the Scottish Parliament to discuss mediation.

The Justice Committee of the Scottish Parliament began considering Alternative Dispute Resolution (ADR) earlier this year and had its first public committee hearing on 6 February 2018.

The Committee is convened by Margaret Mitchell, Conservative MSP who is also the author of the Apologies Act 2016 and for whom I have great admiration. With some difficulty and great perseverance, she got the Act through with cross-party support, including the backing of the Scottish SNP Government. The Act allows people to apologise without that amounting to a legally binding admission of liability. It fixes a great anomaly where we may ‘know’ we are ‘responsible’ for something that causes harm but cannot risk an apology to the person harmed, which can create bad feeling. A mark of a decent human being is one who feels able to apologise when it is right to do so.

In my view the Act is the commencement of an attempt to change Scottish legal culture away from an adversarial, never admit anything, blame someone else culture, to one where we feel comfortable with the idea of taking responsibility for our own actions and seeking to resolve genuine issues and conflicts with others through dialogue, rather than the adversarial ‘war’, that litigation can sometimes become, to everyone’s detriment.

Which brings me neatly to Mediation. I watched the committee proceedings with great interest. Contributors included John Sturrock QC of Core Solutions and Robin Burley Chair of the Scottish Mediation Network speaking about mediation; with contributions from the Scottish Arbitration Centre, and representatives from the Faculty of Advocates and the solicitors’ profession. The theme seemed to be about whether or not there were barriers to the uptake of forms of ADR.

Two things jumped out, for me. The first was that the lawyers present seemed very defensive and appeared to be concerned that ADR, specifically mediation, should not be advanced at the cost of litigation. It also seemed to me that by implication they conflated the idea that access to justice meant access to courts. The two are not the same. The second was that no one suggested the Scottish Parliament should adopt a Mediation Act, as the Republic of Ireland had just done in January 2018. After all Scotland already has the Arbitration (Scotland) Act 2010. I found that interesting, having just written a lengthy article about the Irish Mediation Act, published in Scottish Legal News literally the day before the hearing.

I sat down late that afternoon to very quickly write a short submission of my own to the Justice Committee. I emailed it to Margaret Mitchell and attached a link to my article about the Irish Mediation Act. In my written submission (http://www.scottish.parliament.uk/S5_JusticeCommittee/Inquiries/ADR-Kirkwood.pdf) (the foregoing link also contains a link to the article about the Mediation Act) I associated myself with the written submissions of Core and SMN, with which I agreed. I pointed out that the Irish Republic had just brought into force a Mediation Act, and that I felt there were already sufficient mediators present in Scotland who could facilitate such an Act. I also pointed out that the Republic of Ireland as a state does not financially support mediation per se but does require parties to litigation to seriously consider mediation, either pre or during litigation; and provides legal expenses penalties for a failure to reasonably consider it. I also pointed out that in England under SEN (special educational needs) procedure, legislation requires parties to consult with mediators, to consider mediation to resolve education disputes before they can proceed to tribunal. More than 50% then opt in to mediation, and the majority of cases settle without going to tribunal. This sees much earlier resolution of disputes, with resolution reached more consensually as parties retain control of outcome and don’t cede that to third-party judges or arbitrators, thus maintaining their autonomy. It also reduces unnecessary demand on the publicly funded and overstretched courts system.

I got a fast response from Margaret thanking me for my email and indicating that she had been unaware of the Irish Mediation Act but was grateful to me for drawing it to her attention-she would be looking into it. In response I indicated I would be happy to provide further information if it assisted.

Some weeks later I received another email from Margaret’s Clerk indicating that Margaret would like to meet me. I was delighted. We met on 29 March 2018 and I was given a very fair hearing. The meeting was informal and it was agreed that I could share the fact of the meeting and the nature of my presentation but would not discuss any responses from Margaret with others. I was happy to agree that. It was clear to me that Margaret was entirely au fait with the various issues arising in the discussion of mediation. I argued that making mediation something parties really had to consider, under the auspices of an Act, prior to proceeding with litigation, or by judicial invitation during it, would result in a less adversarial resolution of legal disputes, handing back control to the actual disputees, increasing their autonomy and self-determination. This would apply not only to individuals but also to companies and partnerships. I argued strongly that there was no question of making people mediate without access to legal advice and assistance-it was not a question of either/or. The Irish Act maintains the link between client and solicitor and makes it clear that clients must be able to access both during mediation should they wish. I explained that in all the commercial mediations in which I had participated, it was the norm for lawyers to be present; and that in my view lawyers where often complementary to the mediation process.

I explained about my experience of court annexed mediation under Simple Procedure and how effective that seemed to be- that it was possible to power balance between parties in mediation, where for example there was a legally unrepresented party litigant up against one represented by a solicitor, in order to make the mediation fair. I also explained about the Expenses rule, which provides that where defenders settle after a hearing is allowed, they must effectively pay full legal expenses, with the expenses cap lifted. This is a disincentive to resolution either through litigation or mediation and that perhaps the Committee might like to consider revision of that rule.

I ended by saying that it seemed to me we had been talking about ‘raising the profile of mediation’ in Scotland for many years, since the inception of the Scottish Parliament. Now was the time to grasp the thistle-to change dispute resolution for the better; and to reduce the adversarial nature of our state provided court resolution system by asking people to engage with each other through dialogue in mediation (prior to proceeding with litigation). The result would be much cheaper, easier, faster and less unpleasant resolution of legal disputes for the public, with incidental but concomitant savings to the public purse.

I understand that the Committee is to make a report to the Scottish Government on ADR, following its deliberations and I look forward to reading it.

Posted by Paul Kirkwood, a Commercial Mediator who has also practised as a litigation solicitor for 24 years. He is a director of MNCRS (www.mncrs.co.uk) Mediation, Negotiation and Conflict Resolution Services.