Embedding ADR in the civil justice system

For all bills coming before the Scottish Parliament there is now active consideration to ADR rather than automatically providing simply for appeal to the sheriff.

That was only one of the many points of interest to emerge from the day-long seminar held in May, “Embedding ADR in the civil justice system”, which focused on the practical application of mediation – or a mediation-type approach – in different types of dispute, and whether to encourage its wider use.

The nugget in the opening paragraph came from the keynote opening address by Communities Minister Roseanna Cunningham, who added that all Scottish Government contracts now contain provision for alternative forms of resolution, with litigation only as a last resort. The new Scottish Civil Justice Council, for which the enabling legislation is now in progress, will also be mandated to have regard to methods not involving the courts.

Naturally a key driver in these times of austerity is the need to save public funds. With an EU study, cited to the conference, putting the necessary success rate for mediation to achieve time savings at 19%, and to achieve cost savings at 24%, compared with an actual success rate averaging over 70%, the case is not a difficult one to make.

That said, it appears that the system needs to be more joined up than at present. In-court mediation projects such as run in Edinburgh (described by Sheriff Nigel Morrison QC) are funded through the Scottish Legal Aid Board, but Ms Cunningham recognised that the scope of legal aid might have to be adjusted to “incentivise” mediation. And in a presentation from the family lawyer’s perspective Nicos Scholarios told us that the process of getting sanction for mediation from SLAB was “not straightforward”, despite the significant cost savings.

There are still, Harper Macleod’s Michael Nicholson assured the meeting, lawyers who think that mediation is really just for family law cases – and he had even come across one instance where a lawyer specifically advised a client who wanted to use mediation against doing so. Then there are those, Morton Fraser’s David Hossack added, who think it means just turning up for a chat, and have not prepared properly. So although there is now a high level of awareness among practising lawyers of mediation as an option, it is still hit or miss whether any particular case is diverted that way. According to Nicholson, English solicitors are surprised that it is still “on the fringes” here.

Common experience

But a survey of various practice areas revealed its potential on each front. In employment, Hossack reckoned a turning point came in 2006 with a practice direction by the President of Employment Tribunals providing that a case shall be sisted for mediation where all parties are agreed to that effect, followed by the introduction of judicial mediation in 2009. Tribunal chairman Shona Simon explained how the first mediation pilots had got off the ground, targeting complex cases that were set to take up a lot of tribunal time – with much the same percentage success rate as occurs elsewhere, and some of the others settling shortly afterwards without a hearing. (She admitted however that lawyers can find the process “quite demanding”.)

For personal injury actions, Lady Paton from the Court of Session pointed out that under the Coulsfield rules procedure there is effectively a mediation stage, through the provisions for mandatory disclosure and the pre-trial meeting involving parties and their solicitors. The settlement rate ahead of proof is now around 98%, and cases conclude in one year where they used to average three. Problems such as lawyers entering “to be confirmed” as their valuation of a case, and a junior lawyer being sent to a pre-trial meeting with no authority to agree a settlement, are being addressed by amendments to the rules. (All PI lawyers will in future have to embrace this approach, for as well as the sheriff court ordinary cause now having a similar procedure, rules have just been made, to come into force from September, creating a variant suitable for summary causes.)

Brian Ward, representing the insurers, assured us that they welcomed the cost and time savings to be gained through mediation (some court cases lead to £2 in costs for every £1 in damages), and cited a couple of cases where entrenched positions had been broken down by the opportunity to come face to face, or expert witnesses had had a forum that enabled them to reappraise their respective positions. With fewer than 10% of claims going to court, he said, and fewer than 1% to the stage of a judicial decision, clearly alternatives do exist to litigation processes.

Exploring some of the “myths” about mediation, he added that it is rarely true that a case is unsuited to the process: despite what is claimed, the real issue is not really a point of law in most. Likewise with the claim that the issues are best resolved by a court. As for the belief that it only works in simple cases, he countered that more depends on parties’ attitudes.

From the chair, David Preston observed after Ward’s presentation that it is “interesting how often court becomes a battle between experts rather than between clients”.

Returning to Nicos Scholarios, the CALM mediator appealed for proper funding of what is a “very valuable process” in family law disputes – one in which “the vast majority of cases are capable of being resolved relatively quickly and more holistically”, with proper involvement of the parties leading to more durable solutions and longer term benefits especially where young children are involved.

Professional approach

Under the heading of professional responsibilities, Alison Grant of Biggart Baillie agreed that solicitors are professionally obliged to advise on mediation if appropriate, but questioned whether, applying the standard test for professional negligence, it would be negligent not to do so – though employment cases might be different. The choice of mediator, she suggested, is very important, including whether to engage an “evaluative” or a “facilitative” mediator – the former adopting a more inquisitorial approach, probing the clients about their positions. What about the locus – will one side be put off by it taking place in the other’s solicitors’ offices? And on timing, know your client. While some mediations continue as late into the evening as it takes to reach a settlement, not all clients can cope with that.

Grant added that she had yet to hear a sheriff mention mediation as an option, and that the real need was to persuade the people who were not at the conference.

In the discussion that followed, the point was made that if there is to be any compulsion on parties to be persuaded to try mediation, there also needs to be compulsion on lawyers to be trained in it.

The compulsion aspect was one point taken up in the concluding keynote presentation, from Professor John Lande of the University of Missouri and author of “Lawyering with Planned Early Negotiation”, who noted the ambivalence on the issue, given that it could change the nature of mediation from what should be a voluntary process into something more like litigation. Would it become so routine that it loses its special character? Would lawyers start putting off negotiation until the mediation was due? Adopting a rule isn’t enough, he commented, because lawyers know how to get round a rule if they want to.

A good system, according to Lande, should contain multiple desirable dispute resolution options; use a combination of dispute resolution goals and options; and help parties make good decisions.

His general “planned early negotiation approach”, set out in the panel below, includes the point, borne out in the Scottish experience with the takeup in different parts of the country of collaborative law in family disputes, that one of the most important aids is to develop a good relationship between lawyers. Where you have a group of like minded people who want to make it work, that’s when ADR methods really show their potential.

Planned early negotiation: the Lande formula

The “general planned early negotiation approach”:

• Take the initiative from the outset
• Start with an early case assessment
• Develop a good attorney-client relationship
• Develop a good relationship between lawyers (this is one of the most important things)
• Determine whether negotiation is appropriate
• If so, start with an exchange of key information

The elements of planned early negotiation: 

• Set meetings and prepare your clients
• Use a written agreement to negotiate if appropriate
• Agree the agenda in advance
• Consider using experts, mediators, other professionals
• Use interest based negotiation as appropriate

In summary, Professor Lande said, figure out what is needed to have an effective negotiation at the earliest possible time – and do it!