As a mediator I look back on my years as an advocate at the Scottish Bar with great affection. The intensive preparation the night before. The pre-court anxiety as one wondered which judge would be allocated. Gathering volumes of case reports from the Advocates’ Library. The discomfort of the old courts in Parliament House. Those lengthy cases where evidence was heard over several days or even weeks. Sitting next to and observing the outstanding Queen’s Counsel of the day in action. The anticipation while awaiting the opinion of the court, perhaps weeks after a hearing.

Lately, however, reflecting on the cases in which I was involved, I have asked myself: could at least some of these have been mediated, had mediation been available? Then, as now, most cases in the Court of Session settled without being decided in court. In the mid-eighties and into the ‘nineties, settlement nearly always took place on the morning the case was due to start. Parliament Hall was a mass of bodies. Clients and solicitors would be looking anxiously at counsel who would be strolling up and down the Hall, in step, discussing the strengths and weaknesses of their cases. This was hardcore negotiation and there were many masters of the art. 

Many of these cases could, and in hindsight probably should, have settled earlier. But the system in those days did not cater as it does now for earlier resolution. Agreement is now reached at earlier stages in many cases. Let’s leave for now whether even earlier and/or more satisfactory outcomes could be achieved with mediation.

I am interested in those cases of mine which did go to court. What if mediation had been suggested in the Lands Tribunal cases where I was junior counsel to David Hope QC (as he was), in which we acted for the appellants Exxon and Shell against valuations made by local assessors in respect of the Mossmorran natural gas liquids plant in Fife? Or Hibs, Hearts and Celtic regarding the valuations of Easter Road, Tynecastle and Celtic Park? Could a mediator have been brought in? Probably not, as these were issues of valuation principle with wider application and too much at stake. They probably needed judicial determination.

But what about Balfour Beatty against Scottish Power which reached the House of Lords? In a case about the continuous concrete pour needed to construct the Union Canal aqueduct over the new Edinburgh bypass, the question was whether it was within “reasonable contemplation” that a blown fuse would lead to demolition of the aqueduct. The case was decided on a point on which, as I recall, there was very little evidence at the first court hearing but which became fairly central in the appeal to the House of Lords. There was risk on both sides and the costs must have been relatively high compared to the sum sued for. It was all or nothing. Nearly ten years elapsed between the event and the final decision. I suspect that it could well have been mediated satisfactorily at a much earlier stage. That would have resulted in one less House of Lords authority of course but I am not sure the parties would have been too concerned.

In another complex matter, I was junior counsel for the pursuers in what was then one of the biggest intellectual property cases, Conoco against Merpro Montassa. This concerned a patent for a hydrocyclone which separated oil and water in the North Sea. We had weeks of evidence and had commenced our appeal when the case settled for commercial reasons. There was much at stake and the outcome was always uncertain. I imagine that mediation, which is now regularly used in IP matters, could have brought about an earlier commercial resolution.

I often recall Mr and Mrs Pickering for whom I acted alone in a judicial review of a planning decision, against both the regional and district authorities, each represented by senior and junior counsel. Although we lost in the first court, there may have been a good appeal point. But the Pickerings did not have the resources to continue. Then, as now, the question arises: could a matter of public law have been negotiated using mediation, to the benefit of all concerned – and saving time and money? Quite possibly. Times have changed.

Originally published as an article in The Scotsman on 15 April 2019

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