Mediation and Scottish Lawyers: Past, Present and Future
| Pages | 252-277 |
| DOI | 10.3366/E1364980909001383 |
| Author | Bryan Clark |
| Published date | 01 May 2009 |
| Date | 01 May 2009 |
This article is concerned with the interaction between lawyers and mediation, with a particular focus on Scotland. Lawyers are of course intrinsically involved with the “traditional” dispute resolution paths of litigation and pre-trial client negotiations. Thus their participation in mediation, a relatively new, “alternative” form of dispute resolution,
Although mediation has a life-span that can be traced back for centuries (see D Roebuck, “The myth of modern mediation” (2007) 73 Arbitration 105), it has gained in prominence since the US “Pound Conference” in 1976 where, in setting out his vision for improving access to justice by offering a range of alternatives, Professor Frank Sander coined the term “Alternative Dispute Resolution”: see F Sander, “Varieties of dispute processing” (1976) 70 Federal Rules Decisions 111.
can be seen as either jarring or natural depending on one's perspective. To determine which perception is the sharper may turn on whether one believes that mediation should be seen as an alternative in the arena of dispute resolution and, if so, on what precisely it is an alternative to. For instance, we might pose the following question: is the mediation process one in which legal norms are largely irrelevant, being subjugated to the parties’ interests, or does (and should) the law, and hence lawyers, retain a significant resonance within the process? Equally, we might ask: should mediation be seen as a dispute resolution process within or outwith the traditional civil justice process? Linked to this issue is the question of whether attempts to secure resolution of disputes within mediation can be viewed as merely an example of the inter-lawyer negotiations typically carried out on behalf of clientsAn examination of the relationship between lawyers and mediation is concerned with the role that lawyers might play both within mediation and outside it. It asks about lawyers’ attitudes towards mediation and how such attitudes affect its practice. On one view, lawyers, in their antipathy to and ignorance of the process, have stifled mediation. Alternatively, it might be posited that lawyers have embraced mediation when it has suited them but, in seeking to keep the prize out of reach of others, they have moulded it into a form better suited to the lawyer but not necessarily to the clients that might use it.
See the discussion at C and D below.
This article focuses upon the historical and current interaction of lawyers with mediation, and examines the future prospects for lawyer involvement in mediation in Scotland. By casting an eye over developments in other jurisdictions where mediation is better developed, it analyses a number of key, and at times overlapping, policy issues including: lawyer ignorance of, and resistance to, mediation; the lawyer as “gatekeeper” to mediation; the potential for lawyers to take control of mediation; and the appropriateness of lawyers acting within the mediation process at all. At a time when Scotland is undergoing a civil justice review, which may result in a greater emphasis on the deployment of mediation within the civil justice system, a discussion of such issues is particularly timely.
The development of mediation, far less lawyers’ involvement therein, is still at a relatively early stage in Scotland.
R Mays and B Clark,
Including through developments under the auspices of the Centre for Dispute Resolution: see
For a review of early developments see Mays & Clark, ADR (n 4).
Mays & Clark,
Formed in 1995 by the former sheriff, and mediation pioneer, Marcus Stone. The author was a member of the original steering committee.
E Samuel,
See “Advocates plan to boost mediation skills”,
Although, however, mediation in Scotland has long been seen as a dam waiting to burst, the rivers of enthusiasm are not flowing just yet. Research conducted in 1996 revealed that mediation practice in family matters was modest and, outwith that context, almost negligible. The handful of mediators accredited at that time had generally gained very little practical experience.
Mays & Clark,
Later research carried out into the way that people in Scotland dealt with their justiciable problems found that mediation was very rarely deployed: see H Genn and A Paterson,
Scottish Consumer Council,
In terms of its reported settlement rates and participants’ views.
Samuel,
SACRO annual report 2007/8, available at
On file with the author. The number of actual mediation cases, however, is likely to be a fraction of that figure. The umbrella organisation for family mediation services in Scotland, Family Mediation Scotland, has recently merged with the counselling service Relate Scotland to form Relationships Scotland: see
J Sturrock, “Reflections on commercial mediation practice in Scotland” (2007) 73 Arbitration 77.
B Clark and C Dawson, “ADR and Scottish commercial litigators: a study of attitudes and experience” (2007) 26 Civil Justice Quarterly 228 at 237. The research method used results in some double counting, but equally the study does not claim to track all pre-existing commercial mediation practice.
Although it seems that in England and Wales initial enthusiasm may have waned of late: see, for example, H Genn et al,
L Boule,
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