I was delighted to read my friend Angela Grahame QC’s article in these pages a couple of weeks ago. As the recently elected Vice Dean of the Faculty of Advocates, Angela is bringing a freshness and agility of thought to her work in that role. And, as a regular tweeter, she is also bringing a contemporary joie de vivre that is brightening up perceptions of the Scottish Bar. More than that, though, she is seeing things as they are in 2017, even if that means tackling some shibboleths associated with the law and its practice.
In her article, the Vice Dean spoke of clients becoming more and more frustrated by the time and increased costs of taking a case to court. She commented on delays in and interruption of court cases and anger expressed when clients are told to “go away” because there is no judge to hear a case. These are not new criticisms of the litigation system, of course; indeed the immediate past Lord President, Lord Gill, was even more trenchant when proposing court reforms a few years ago.
The Vice Dean offers a solution which is “confidential, flexible, faster and bespoke”, with “more control than ever before”, the provision of specialist assistance from members of Faculty, online help and no more “hanging around”. Her answer is a new arbitration scheme.
There is no doubt that clients are looking for alternatives to court. That is a phenomenon experienced around the world. And it’s not just about cost and time, although these are important to many. It’s also about not handing over representation and decision-making to a third party. Credible research shows that more and more commercial people and professionals wish to retain the final say over what happens to their dispute or claim. They wish to treat these in the same way as they do the rest of their business. But handing over to a third party (judge or arbitrator) to adjudicate inevitably leads to uncertainty. The same applies to lay people too.
There is nothing new in this. Most disputes are resolved without the involvement of lawyers, even before courts are called upon. Most disputes referred to lawyers are resolved by them without resort to court or another third party. That is because negotiation is nearly always the preferred route and most people are well able to negotiate their own outcomes for themselves or with professional help. Courts and arbitrators are generally a last resort.
We need to do more to encourage negotiation. I sense that lawyers are much more skilled at negotiation than they used to be (although, anecdotally, negotiation remains under-taught at law schools in Scotland). It is well recognised in many jurisdictions, including the US, that if party to party negotiation fails or gets stuck, it can be extended with real value by employing a mediator to help the parties to continue to negotiate.
Most mediations lead to a satisfactory resolution. Not a panacea but a sensible and constructive outcome which meets the realistic monetary and non-monetary, legal and non-legal needs, both present and future, of those involved. Writing about this ten or fifteen years ago, it might have been said that mediation was untried in Scotland. However, while it remains hard to quantify the numbers, there are probably many more disputes resolved in Scotland these days by mediation than by arbitration. It is well tested and, for many, well trusted.
In the US, Tom Stipanowich, Chair in Dispute Resolution and Professor of Law at Pepperdine University, the leading School of Law for dispute resolution, has expressed reservations about arbitration, referring to research showing a “dramatic fall-off’ in its use, alongside increasing use of mediation. But the real point is the changing face of dispute resolution generally, a point made last year in these pages by David Christie of Robert Gordon University.
Stipanowich observes that many companies now use approaches focused on more strategic management of conflict, in a manner more reflective of business priorities. These include targeted “early neutral evaluation” that promotes settlement and more “effective case management”, and integrated systems for managing workplace conflict. Such approaches “represent a significant step beyond reactive and reflexive advocacy”, he concludes.
So, this is not about one thing or the other. There will continue to be a limited use of courts. Arbitrators will also have a role. Mediation will continue to grow. And we all owe it to those with disputes to help them to manage and resolve these quickly, cost effectively and, above all, in ways which meet their real needs.
Originally published in The Scotsman on Monday, 9 January 2017.