Andrew Ireland

Recent articles in Scottish Legal News by Julie Hamilton of MacRoberts, David Hossack of Morton Fraser and by the Vice Dean of Faculty, Angela Grahame QC, have commented on the increasing profile of mediation as a means of resolving disputes. All of this is against the background of the Scottish government’s initiatives in the coming year and the pending private members’ bill in the Scottish Parliament.

Those of us who have historically and predominantly practised more in the field of personal injury may have had little experience of mediation as a means of resolving disputes. The predominant means used to facilitate settlement in personal injury cases is the pre-trial meeting. The use of counsel or a solicitor advocate, perhaps coming “fresh” to the case, or at least able to bring a sense of professional detachment, might be said to facilitate resolution without the need for third party intervention.

Last year I was involved in three mediations for the first time in my career. Each of these was a non-personal injury case, one being a property damage case, the other an environmental case and the last an insolvency/financial services case. All settled satisfactorily after a full day’s mediation in each case, saving the significant further costs of many days of evidence in the Court of Session. This led me to consider the pros and cons of the pre-trial meeting system against mediation.

The great advantage of mediation is the skill a good mediator brings to bear. Our mediator convened a “plenary” session at the start of the day at which all the clients and their advisers met over breakfast rolls, tea and coffee. They introduced themselves and generally broke the ice. A series of separate meetings with the parties allowed the mediator to form an understanding of the desired outcomes, the strengths and weaknesses of the case and the likely sticking points. In turn he was able to use this information, in confidence, to test the resolve of the other parties in a series of further meetings. An agreed willingness to settle, albeit not at all costs, is a prerequisite to this process. The mediator was able to procure the making of offers to settle, improvements in offers where necessary but equally also, realistic concessions by the opposing parties.

Pre-trial meetings, however, can often end in stalemate. Everyone is usually in separate rooms. Clients never meet. Exchanges take place either in a break-out room, but more often between counsel or solicitors outwith the presence of their clients. Often a more traditional approach by some practitioners leads to a reluctance to engage “in the round” despite what the clients may wish. Although often themselves highly experienced negotiators, positions are often taken up that lead to deadlock. In at least one of my pre-trial meetings over the last year I felt that an experienced third party facilitator such as a mediator was necessary to avoid such deadlocks.

Whilst mediation is not unknown in large, complex personal injury cases, it has largely been confined to those involving large sums of money or complex multi-party liability arguments.

Mediation need not be unduly expensive. In two of my cases we were able to use the extensive meeting facilities of the larger firms of solicitors involved. In the third the costs of a conference suite in a large hotel were not out of proportion. In two of my cases the experienced solicitors involved, with the agreement of their clients, chose not to involve counsel. The savings made more than justified the mediators fees per party which again were not out of proportion. My property case was worth less than £300,000 on full liability but involved the uncertainty of competing expert evidence.

It remains to be seen what proposals will come of the Scottish government’s initiatives and whether Mrs Mitchell’s bill will pass. From my own recent experience I would commend mediation to anyone yet to consider the resolution of their clients’ disputes in this manner.

Andrew Ireland is a partner at DAC Beachcroft