Andrew Constable

In a Scottish government paper published last month, Justice in an independent Scotland, the government explains its “vision of a just, safe, resilient Scotland”. The paper references another publication, The Vision for Justice in Scotland, that includes: “Resolution in court is not always the best outcome or process … Civil disputes are damaging, expensive, and time-consuming … Preventing disputes, and resolving them earlier and more effectively, benefits us all. This includes being able to access alternative dispute resolution or mediation forums for civil justice issues.”

Mediation is something that the Scottish government is supporting with money too, with £251,587 spent in the 2023-24 financial year on these services, including where sheriffs in simple procedure claims refer parties to mediation. In England and Wales, mediation will, from later this month, be a requirement for certain disputes under £10,000, as an integral part of the civil court process.

On civil court matters, the Scottish government plans to increase further the cost of litigation, proposing a 10 per cent increase on court fees from 1 November and an extra increase of 10 per cent on certain sheriff court fees. These increases would be in addition to the two per cent increase last month, and of two per cent in each of the five previous years, 2.3 per cent in 2018, targeted increases of up to 109 per cent in 2016, two per cent earlier that year, and four per cent in 2015.

With these rising costs, more people might think about alternatives to court. One option is arbitration. This differs from mediation in that an arbitrator is chosen by the parties to decide the case whereas a mediator assists parties in trying to reach agreement.

Draft rules, being worked on by the Scottish Civil Justice Council (SCJC), contemplate more judicial power to prompt resolution outside court. The working draft rule reads: “A court is to – (a) encourage parties to resolve the dispute between (or among) them by means such as negotiation or mediation, and (b) make such orders as the court considers appropriate to facilitate such resolution.” The Rules Rewrite Committee at SCJC continues to work on this and plans to consult on the next version of the rules later this year.

Meantime, sheriffs in commercial actions can already order parties to “alternative dispute resolution” and judges in commercial actions at the Court of Session can probably do that too because they are empowered to make any order thought “fit for the speedy determination of the action”.

While, currently, Scottish courts hearing personal injury cases cannot order parties to an alternative resolution method, it is competent for parties to agree a different route, which might be less expensive and less time-consuming. Other benefits of an alternative method may be confidentiality of the process along with choice and continuity of the decision-maker.

There is nothing new in parties choosing a person to make a binding decision. In ancient Rome such a person was called the “iudex”. In modern Scotland such a person is an arbitrator. The Roman procedure had two stages – the first before a magistrate, with an assessment of whether the dispute was in competent legal form and when the iudex was chosen, and the second before the iudex – who need not be a lawyer – to rule on the dispute. The choice of iudex was that of the parties, taken from a list, with the last on the list the iudex if there was no agreement. A similar sort of arrangement could now play an increasing role in modern Scotland.

Andrew Constable is a partner, Clyde & Co. This article first appeared in The Scotsman.