Win-win ways

We suspected that compiling a Who’s Who in Dispute Resolution would be a popular choice with the profession, and so it has proved. Although it has often been said that lawyers are suspicious of mediation, and/or slow to take it up, it is clear that for many firms, exploring alternatives to taking a dispute to court now takes place as a matter of course.

The feature appears in two sections, for commercial and family law practitioners. A number of firms are represented in both. We have attempted to reach as many solicitors as possible whom we thought would be interested, through Journal advertisements and direct approaches, and although not all have responded, we believe the result provides a representative picture of the range of advice available.

CALM influence

Family law of course has its own specialist legal mediation accreditation in CALM Scotland (www.calmscotland.co.uk), established in 1994 by a group of experienced family lawyers who were keen to provide an alterative process for family dispute resolution. There are presently over 52 CALM mediators in Scotland.

CALM mediators are all family lawyers with at least seven years’ family law experience and have undergone a period of training as mediators before being accredited by the Law Society of Scotland as family law mediators. Each year they have to undergo continuing professional development training and assessment to maintain their accreditation.

CALM mediators have knowledge, not only of the relevant family law, but also an understanding of family dynamics and behaviour, being sensitive and alert to power imbalances within a relationship and to other behaviour or influences which could affect the mediation process. A full list of those currently accredited appears in the Scottish Law Directory.

The range of services on the family law front has recently been added to by family law arbitration (see Journal, December 2010, 24), which offers a more flexible, private, and less expensive alternative to full blown litigation for those cases which for whatever reason are not susceptible to mediation.

Commercial pitch

A similar menu of options is available in the commercial context – perhaps with the exception of the full collaborative approach. But arbitration, adjudication, mediation, and independent expert evaluation all appear to be well established, and practitioners who are also familiar with the less formal and more judicially proactive procedures of the commercial court will be the more likely to look flexibly at possible routes by which their clients’ disputes might be resolved.

Especially in the commercial field, the past year has seen a concerted push on the part of government, in collaboration with practitioners already active in the field, to promote Scotland as an international arbitration centre, on the back of our new Act of 2010 that is said to provide the necessary framework to give our jurisdiction a competitive edge, if the profession will seize the opportunity offered. A further conference is taking place this month (23 March: see Update, p4) to advance that cause.

Not that other established fora of choice will surrender their positions lightly. Already since the Scottish Act became law, France, the home of the International Court of Arbitration of the International Chamber of Commerce, has passed a decree of January 2011 revising its own arbitration code to ensure it once again corresponds to best practice.

In short, as in other fields, Scots lawyers must show themselves willing to compete in the wider market if they wish to win a slice of the biggest ticket dispute resolution work. The entries in this feature indicate that they have the strength in depth to do so.

For the full listing please see printed magazine or download the PDF