John Sturrock KC

It may well be that Mbappe can afford to engage in arbitration or litigation to press his claims. But many people cannot afford to do so or, if they do, find that the costs can far outweigh the benefits.

Recently, I acted as mediator in a relatively straightforward dispute between neighbours. Agreement was reached between them in a day of mediation, during which we learned that each party had so far incurred over £100,000 in legal and other expenses. Ongoing litigation, including several court orders, had not provided a remedy to either party and, indeed, had probably served to harden positions. Mediation was really a last resort.

So far as one could tell, at no stage had the court before which the matter was progressing encouraged the parties to try mediation. An earlier suggestion involving the solicitors had been rejected. Like Mbappe, the parties themselves may not have welcomed the suggestion of mediation. However, it seems likely that, had they been encouraged or directed by the court at least to try mediation much sooner, they could have resolved matters earlier and saved themselves a lot of money, and avoided the stress, animosity and distraction associated with ongoing court proceedings.

In England and Wales, the judiciary has continued to promote mediation and, where appropriate, impose sanctions on parties who unreasonably refuse to engage in it. In addition, changes to the Civil Procedure Rules, to reflect the recent Court of Appeal case of Churchill v Merthyl Tydfil, came into effect on 1 October 2024. That case decided that courts can lawfully stay (‘sist’ in Scotland) proceedings for, or order parties to engage in, ADR.

Rule changes include amendments to the “overriding objective” to incorporate “promoting or using alternative dispute resolution” and provide that “the court must further the overriding objective by actively managing cases”, to include “ordering or encouraging the parties to use, and facilitating the use of, alternative dispute resolution”. The “overriding objective” is designed to enable courts to deal with cases justly and at proportionate cost.

It has been said that this puts ADR squarely at the heart of English courts’ approach to case management, so that ADR will become even more common in disputes of all types in future. In practice, when the courts or rules mention “ADR” or “alternative dispute resolution”, they are referring to mediation.

These changes reflect the increasingly supportive approach to mediation that the English courts have adopted in recent years. Indeed, the Commercial Court there no longer considers such approaches “alternative”, renaming them “Negotiated Dispute Resolution”. Incidentally, the High Court of Ireland recently imposed a costs penalty for a solicitor’s failure to advise clients about the benefits of mediation. 

In the Churchill case, the court added that “experience has shown that it is extremely beneficial for the parties to disputes to be able to settle their differences cheaply and quickly”, and that “even with initially unwilling parties, mediation can often be successful”. Applying that reasoning to my experience noted above, things might have been very different.

With impending changes in leadership in the Scottish judiciary, might there be a fresh look at how we do things? Perhaps Mr Mbappe will reconsider too!

John Sturrock KC is senior mediator at Core Solutions. This article first appeared in The Scotsman.