Looking back at the July 2002 edition of the SCOLAG Journal (number 297!), I find a letter from me responding to an article by Sarah O’Neill in which I extol the benefits of mediation in non-family matters. I give numerous examples to show that “the picture in non-family mediation in Scotland is happily getting brighter.” I note growing demand for mediation services, positive feedback from users, increased uptake of training, initiatives in universities, judicial awareness and a substantial report from the Royal Society of Edinburgh recommending mediation in medical negligence cases.
I conclude: “It has always been said that the introduction of mediation is a marathon rather than a sprint. It is encouraging that, with significant efforts being made over the past twelve months, a large number of those within and outwith the legal profession are becoming more aware of the benefits of mediation - and are showing an increasing willingness to use it.”
A marathon and not a sprint…who would have thought that, 17 years later, Sarah O’Neill and I would be members of an expert group which, by the time of publication of this special edition, will be on the cusp of publishing a full report recommending much greater use of mediation in the Scottish civil justice system, recognising that mediation has not so far achieved the impact and uptake which we all agree it should.
The draft Report comments that “the use of mediation in resolving civil disputes in Scotland is currently much lower than might be expected. While mediation is now used to a greater degree than in the past, various efforts over the past two decades or so to promote its benefits have not significantly changed a legal culture committed to litigation. Even where objectively it might appear that parties’ interests would be better served by mediating their dispute, the default position is generally to litigate.”
This follows hard on the heels of a proposal from Margaret Mitchell MSP for a private members’ bill to encourage mediation. Reflecting the findings of a recent report by the Scottish Parliament’s Justice Committee, the proposal notes that: “… there continues to be evidence of a lack of public awareness of mediation, a patchy uptake of services, and some continued barriers preventing mediation from being more widely used. This includes evidence of inconsistent recommendation of mediation by sheriffs.”
In an address to the annual meeting of Scottish Mediation last year, I observed that mediation has not taken root in Scotland as so many of us think it should have done and hoped it would. Progress in this jurisdiction is and has been slow. I looked back over the last fifteen to twenty years in Scotland and noted a real sense of frustration about the relative lack of progress. A “cultural shift” and “step-change” have been in the wind for years but they have not occurred, yet.
Having said that, it is appropriate to acknowledge all the excellent work that has been done by individuals and groups in significant pockets throughout Scotland where mediation is now well received and well recognised. It will be good to see that work being rewarded with a major breakthrough in 2019, coinciding with this milestone in SCOLAG’s history.
Mediation, with its focus on returning autonomy to the parties and on finding mutually acceptable outcomes, is arguably a feature of an open society, an example of democratic ideals. It fits well with a direction of travel which recognises cooperation and civility as essential to human progress and where decision-making is vested in those most affected. However, these ideas are no longer givens in 2019. The need to find ways to protect and preserve the institutions that underpin consensus and the common good is real.
I write this as Britain’s planned exit from the European Union threatens to tear the country apart. Brexit has exposed the inability of the traditional process of parliamentary politics in the UK to address the increasingly complex issues of the 21st century. A process built on debate and division, on adversarial argument and binary voting on most issues, and founded on a party-political system which relies on positional and often parochial views, seems no longer suited to the complexities of the modern era.
Around the world, there is increasing populism and confrontation as many people seek to express their frustration and alienation. It seems that traditional norms are being departed from and some very unpleasant polarisation is emerging. Separateness and differentiation from others we don’t like or feel uncomfortable with is becoming an increasingly acceptable trend, coupled with violence of language and apparent loss of decency and self-control.
I am struck by these words of Tim Hicks, in his excellent book, Embodied Conflict: “It’s interesting to think about the violence we see in the world, whether at the level of interpersonal relationships, or at the societal and global levels, as a public health issue.”
We seem to have gone, or to be going, from consensus to confrontation. Who would have thought that, nearly 30 years after the Berlin Wall came down, the Soviet Union collapsed, Fukuyama wrote The End of History and the seminal negotiation text, Getting to Yes, was published, we would be regressing as we seem to be. The climate is changing in more ways than one.
I recently picked up a book entitled World Without Borders by Lester R Brown. Published in 1973, the author dedicates his book to “a world order in which conflict and competition among nations will be replaced with cooperation and a sense of community.” The reviews featured on the back cover say that Brown “persuasively argues...that the day of the militaristic-nation state is over, and that a unified global society is the only hope for survival.” and offers “convincing evidence that the ‘One World’ concept may be much closer to realisation than we are aware..”. How far away that seems now.
If one adds the climate change emergency, rapid and widespread technological innovation, not least AI, eco-system and species breakdown, mass migration and other growing international tensions, making up what is known as the VUCA (Volatile, Uncertain, Complex and Ambiguous) world, we must ask if the conventional paradigm for political decision-making and policy-making is fit for purpose?
I would argue that mediation may hold, at least in part, a way to help to rebalance things, to move us back to the necessary state of cooperation without which our very future as a species seems to be at risk. There is no room for positional bargaining any more when it comes to the environmental risks. There is no us and them, we’re all in it together and an interest-based approach seems to be the only way to deal with it.
Extending these ideas to ways of problem solving more generally, including of course the world of dispute resolution, we know that adversarialism is costly. Whether in our justice systems, national politics or international diplomacy, we must find ways to move away from binary, right/wrong, right/left, win/lose, in/out, yes/no decision making. Zero sum outcomes do not serve us well.
We need a more enlightened, expansive, constructive, creative way to sort out our difficulties. This applies to prevention and reduction as well as to resolution. We need, in the jargon, to find durable, efficient, least damaging methods to manage and resolve the effects of differences between people, groups and nations.
It is arguable that our need to discover, or rediscover, consensual ways of handling difficult issues is therefore, in this century, a matter of survival. We need to really listen to each other, understand the deep underlying issues, explore the real needs and interests of people, communities and the planet, identify and develop creative options, use objective criteria to assess them, and help each other to make innovative decisions.
What I have just described are classic attributes of effective mediation. Mediators have the knowledge and experience to offer a constructive way of doing things. We have a calling to help people to find resolution in the most intractable of disputes. We do it week in, week out.
We can and must use our mediation skills, and all we understand in that regard, to do what we can to help manage and resolve disputes and differences in a sustainable and environmentally friendly way, in the broadest sense of that term, in our communities and commerce, in our workplaces and families and in the wider global issues, including when we address the impact of climate change and the polarisation of and within politics.
The proposals at last emerging in Scotland point us in a more enlightened and constructive direction. That 2002 letter seems a long time ago. I hope that, in 2036, someone will look back and write of the preceding seventeen years that 2019 was the turning point when Scotland grasped the opportunity to bring mediation into the mainstream.
Originally published in The Scotsman on Monday 1 July 2019.