Malcolm Gunnyeon

As litigants increasingly look for quicker and more cost-effective alternatives to the courts, mediation has become well known as a means of resolving disputes.

Compared to the courts, where the outcome rests entirely with the judge, mediation gives the parties control over the terms of the agreement they want to reach, and the flexibility and complete confidentiality of the process means that far wider interests, issues and solutions can be explored.

However, the growing appreciation of the benefits of mediation has not translated into a significant uptake in its use, particularly in complex commercial disputes.

Calls for more to be done to increase the uptake of mediation have culminated in a proposal for a Mediation (Scotland) Bill to be brought before the Scottish Parliament.

The central aspect of the proposed bill is a new obligation on all parties to litigation to attend a compulsory “mediation information session” in order to discuss the suitability of their case for mediation. It is only attendance at the meeting that is compulsory; afterwards, the parties are free to proceed with litigation.

In its report, Bringing Mediation into the Mainstream in Civil Justice in Scotland, Scottish Mediation recommends introducing a degree of compulsion into the system with the creation of an Early Dispute Resolution Office across all courts and tribunals in Scotland. Its remit will be to review all new cases and direct appropriate examples to mediation. Crucially, parties would be required to attend mediation before their case can proceed in court.

This highlights the fundamental strength of mediation. It works because parties genuinely want to use it to find a solution. It also highlights the fundamental challenge to increasing its use, namely the inherent inconsistency in attempting to compel engagement with a process that is founded upon willing participation.

Making the “mediation conversation” a routine step in the litigation process will inevitably improve the rate of uptake. However, a “one-size-fits-all” approach does not take account of the vast range of proceedings before the Scottish courts. Encouraging early mediation is best considered on a case-by-case basis by those with detailed knowledge of the proceedings, namely the solicitors involved and judges, sheriffs and tribunal members.

The suitability of a dispute for mediation and, more importantly, the optimal timing to hold a mediation will vary from case to case. Solicitors’ case strategies may well be geared towards an offer of mediation at what is considered to be the optimal point. That may not be at the outset of the case; it will often only be once expert evidence has been obtained and a comprehensive assessment of the merits undertaken.

It does not seem appropriate in those circumstances to require parties to also attend a mandatory mediation information session, particularly if those parties are based outside Scotland. An unhelpful and expensive mandatory process will not attract complex commercial cases to the Scottish courts.

It is important that any changes incentivise Scotland as a forum of choice and showcase the Scottish courts as an attractive place to litigate complex disputes.

The fundamental source of success comes in large part from the entirely voluntary nature of mediation. A party forced into mediation, and which takes a completely intransigent stance, will not only make the process entirely ineffective but could further polarise the parties’ position and make resolution, other than by judicial determination, even less likely.

Therefore, encouraging, or even compelling, parties to consider mediation can only ever be part of the answer. The best way to incentivise parties to pursue early settlement, through mediation or otherwise, is by providing a high standard of alternative dispute resolution service in all Scottish courts.

If complex commercial cases are to be resolved at mediation rather than judicially, we must provide a service as good as, or better than, that currently provided by the judiciary. It will require mediators of a similar calibre to and have the experience of members of the judiciary. We should be creative and ambitious – for example, experienced mediators across a range of specialisms could become salaried employees of the Scottish Court Service and some members of the judiciary could be trained as mediators. With parties’ consent, cases could be appointed to a mediation track in each court.

What is clear is that “bolting on” a compulsory process to the current service is not the answer.

Malcolm Gunnyeon is a partner at Dentons. This article first appeared in The Scotsman.