Calum MacNeill

Addressing the annual dinner of the Chartered Institute of Arbitrators Scottish Branch on Friday evening [24 February 2023], Westwater Advocates’ Calum MacNeill KC FCIArb described the term as outdated and anachronistically litigation-centric. “In the modern era, the dispute resolution professional has at their disposal a suite of implements. These are all respectable, well-developed, widely practised means of resolving disputes, so why is it that we refer to all of them apart from litigation, as ‘alternative’? When it comes to enforcing decisions of arbitrators, adjudicators and such like, it is the court that is in reality the alternative.”

Addressing the sold-out event in Edinburgh’s Radison Blu Hotel, the KC argued that the term ADR belongs to a time before non-court options were as developed and viable as they are now. “When I started out, firms of solicitors had a ‘Court Department’. A suggestion of mediation was widely regarded as running up the white flag. Arbitration was a specialism not for the faint-hearted or those without plenty of time on their hands to wait for a result. Adjudication had not been invented. But court departments have long-since been re-named, usually as dispute resolution departments or similar to reflect the changing landscape of conflict management and the expectations of clients.”

The object of the Chartered Institute according to its Royal Charter is to promote and facilitate worldwide the determination of disputes by “all means of private dispute resolution”.

“So here’s my call to you tonight,” he concluded, “Let’s start referring to private dispute resolution, not only to reflect the objects of the institute, but to refer to the myriad means of resolving our and our client’s disputes that don’t involve publicly-funded courts and tribunals and that are not conducted in public.”