Still set on making mediation mainstream

The use of mediation in resolving civil disputes in Scotland is currently much lower than might be expected, writes John Sturrock

When I was a law student in the late 1970s, teaching on subjects such as housing law, social security and even employment law was a minority activity, if it existed at all. That these topics became mainstream was significantly due to the work of the Scottish Legal Action Group (SCOLAG) whose journal was both radical for the times and a source of information about these and other areas of law. Then, as is still the case now, access to justice was difficult for many who were economically, socially or otherwise disadvantaged.

It was a great pleasure to be invited recently to celebrate publication of the 500th edition of the SCOLAG legal journal at the refurbished law school in Edinburgh’s Old College. Indeed, the main event took place in the lecture theatre where I recall learning the rudiments of consumer credit and other more mainstream areas of law and jurisprudence from the great lecturers of the day, such as Professors Neil Maccormick and Bill Wilson. On this occasion, we were addressed with great eloquence on the history of SCOLAG by one of its key players over the years, Sheriff Derek O’carroll.

The subsequent reception took place in another former lecture theatre where, as students, Derek O’carroll (as he then was) and Maggie Scott (as she then was, now Lady Scott, the High Court judge) and I once debated the future of the law. As I recall, Derek and Maggie led the Critical Law Society and I was president of the Law Students Council. It wasn’t, if my memory serves me well, a particularly friendly encounter. I represented the establishment approach and the Critical Law Society stood for radical change. The exchanges were quite forceful.

As Derek and I reflected on the passing of 40 years, the irony that, in 2019, Derek and Maggie are now judges and I find myself on the rather more disruptive side of things was not lost on us. Indeed, 17 years since I last made a contribution to the SCOLAG journal, I was invited to write for the 500th edition. My topic was the same: bringing mediation into the mainstream in Scotland.

In that recent article, I mention that, 17 years ago, I had provided numerous illustrations of what seemed to be, in 2002, growing demand for mediation services in Scotland. Then, I had noted that, “with significant efforts being made over the past 12 months, a

large number of those within and outwith the legal profession are becoming more aware of the benefits of mediation - and are showing an increasing willingness to use it.”

So, who would have thought that, 17 years later, I would co-chair an expert group which, this past week, has published a detailed report recognising that mediation has not so far achieved the impact and uptake in Scotland which we all agree it should have done. The Report comments that the use of mediation in resolving civil disputes in Scotland is currently much lower than might be expected.

While mediation is now used to a greater degree than in the past, the report acknowledges that various efforts over the past two decades or so to promote its benefits have not significantly changed a legal culture committed to litigation. Even where objectively it might appear that parties’ interests would be better served by mediating their dispute, the default position is still generally to litigate.

We know that adversarialism is costly. Whether in our justice system, the way we handle disputes generally, national politics or international diplomacy, it seems that we need a more constructive, cost effective and creative way to sort out our difficulties. Mediation provides such a way for many situations.

The report recommends much greater use of mediation in the Scottish civil justice system. It recognises that mediators can help people to find resolution of the most intractable of disputes, where the power to make decisions is restored to the people who really matter. The detailed proposals in the Report point the way to mediation being used to help people to manage and resolve disputes in our communities and businesses, workplaces and families, and indeed more widely.

Coupled with recent proposals for a mediation bill from Margaret Mitchell MSP, the recommendations now emerging in Scotland arguably point us in a more enlightened and cooperative direction. 2019 seems to be the year when Scotland is finally taking the opportunity to bring mediation into the mainstream.

John Sturrock QC is senior mediator at Core Solutions