Take an example of creative problem-solving: there are two parties with claims and counter claims in a court action. They have a common problem: a major facility needs fixed. Further up the chain, it does not matter who caused the problem or why. It needs fixed. An award in court of compensation to one or other party won’t solve the problem. By that stage, it will be too late. A technical solution is required — and soon. Working collaboratively, using the same strengths, technical skills and business relationships that led them to contract in the first place, a way forward is found which can address the underlying problem. Common sense prevails. And it all happens in one day of mediation.
This story illustrates the growing trend in Scottish business to handle disputes quickly and cost-effectively using mediation. Hundreds of solicitors, in all of the major law firms, and in smaller, local and single practitioner firms too, have used mediation in recent years in Scotland. The geographic spread extends to the outer isles as well as the Highlands and the central belt. Some larger firms have used mediation scores of times. Their clients often benefit hugely from this imaginative approach to unlocking stalemate and deadlock.
Mediation is occurring in sectors and disputes in all areas of commercial activity, from oil and gas to transport, construction, planning and intellectual property, and from employment to the board room, health and education. Agriculture, property, sport and insolvency are growth areas.
Court reforms may lead to more mediation, although Scotland still falls behind other jurisdictions in the encouragement given by judges. That may matter less. Scottish lawyers, now better skilled than ever in the negotiation techniques required to handle difficult disputes, know that using a good independent mediator offers another useful option in their repertoire.