We welcome a new Cabinet Secretary for Justice. Among many tasks, he faces the perennial challenge that a significant part of what is referred to as “dispute resolution” in a civil (ie, not criminal) context in Scotland still seems disproportionately costly, time-consuming and uncertain and is also often destructive of business, commercial, financial, community and personal relationships.  This inevitably causes losses in the economy and to society.

These monetary and non-monetary costs are most pronounced in the litigation system where formal procedures and the adversarial nature of court processes can produce many of these symptoms. The same may be said for some tribunals, public inquiries and other adjudicative processes. And there are many protracted unresolved disputes which simply get stuck through want of opportunity and resources to resolve them constructively.

This is not a criticism of the current system as such, more a recognition of the inherent limitations of approaches which require parties to assert their own positions as “right” and seek to show other positions are “wrong”. This binary, win/lose, black/white approach is suitable for those cases in which legal certainty and a form of judicial decision is necessary. However, these cases form a very small proportion of all matters which are disputed and figures often suggest less than 5 per cent of cases in the court system are actually decided by a judge.  Yet, as the Cabinet Secretary will be aware, very significant publicly-funded resources are directed to this system.

Recognising these issues, many jurisdictions are embracing different ways to help resolve disputes. It is regularly said that we live in a “post-litigation” age as people everywhere see the benefits of resolving differences early and with less time and costs involved. Although the term “alternative dispute resolution” (ADR) was deployed 30 or more years ago to describe this development, that expression is now thought inappropriate. “Dispute Resolution” comes in many forms and these are better viewed as a variety of options, which will include litigation and tribunals (along with arbitration) in a few appropriate cases. 

The key, however, is to expand our knowledge, experience and skills in the range of options available for early and constructive solving of problems – and the prevention or at least nipping in the bud of disputes and unresolved differences wherever we can. Of course, the majority of disputes are already resolved without formal proceedings, and indeed without lawyers or other professionals, by simple negotiation, the most common form of dispute resolution. That platform can be built upon and supported more in Scotland. Get this right and the gains could be significant.

There are important questions to be asked by any Justice Secretary. What kind of dispute resolution system do we wish to encourage in contemporary Scotland? How should public money and resources be deployed to achieve the best results? What changes do we wish to make or encourage to achieve early and cost-effective resolution of disputes, recognising that encouraging that will be good for the economy, society and communities?

The Cabinet Secretary will wish to encourage the Justice Directorate of the Scottish Government to research, and adapt where appropriate, the many excellent schemes in other jurisdictions, not least where provision of public services is involved. Mediation and associated concepts are sometimes viewed as “touchy feely” by some people inexperienced in their use. Nothing could be further from the truth. Nearly all disputes have a human dimension which is very often ignored, and recognition of which is often a key to unlocking a problem. Addressing this and the multitude of factors present in all disputes requires real skill and professionalism.  

The Cabinet Secretary (or Justice Committee of the Scottish Parliament) might encourage Audit Scotland to examine the costs and benefits of the civil justice system in Scotland; and both might further encourage the courts to follow those in many other jurisdictions and promote more actively the use of early negotiation and mediation to enable earlier settlement of cases.

How about the re-allocation of a small proportion of the justice budget in Scotland (say one senior judicial post and one sheriff post per sheriffdom) to fund “Early Dispute Resolution” programmes in the Supreme and Sheriff Courts and the rejuvenation, extension and better resourcing of successful in-court mediation schemes already experienced in places like Edinburgh, Glasgow and Aberdeen Sheriff Courts? These could be expanded to create “Early Dispute Resolution Hubs” throughout Scotland where experienced professionals can help disputing parties to negotiate a quick solution.

This may seem like hard work, but the transformative benefits for individuals, professionals, businesses and communities of a shift in culture have already been shown to be significant in Scotland. We should build on this. Over to you, Cabinet Secretary. 

Originally published in The Scotsman on 6 August 2018.

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