John Sturrock: Change for the better doesn’t mean new at the expense of old

Published on Monday 5 December 2011 00:00

IT WAS a privilege to be at St Giles Cathedral at the memorial service for Lord Rodger of Earlsferry. Tributes reminded us of his exceptional intellectual qualities, his warmth and humility.

Many of us remember his enthusiasm to participate in the training programme for devils at the bar, notwithstanding his onerous responsibilities at the time as Lord President. He genuinely wanted each trainee advocate appearing in front of him, conducting a simulated hearing in Donoghue v Stevenson, to do well. His remarks to them were clear, frank and supportive, just as they were a couple of years ago at a private gathering of young lawyers, meeting to discuss the future of the Scottish legal profession. Although other senior figures were cautious about taking part, Alan Rodger participated in that overnight “retreat” and brainstorming session with a keen interest and great wisdom.

The day after the memorial service, I took part in another simulated event for young lawyers, an international mediation competition hosted by Strathclyde University. I was struck by the enthusiasm and excellence exhibited by the performers and senior lawyers who gave up time to act as judges. This enthusiasm was also expressed by several members of the Northern Irish Bar who undertook an advanced mediation training course in Belfast. In both instances, the sense of the need to adapt to changing times was palpable.

Lord Rodger described the “modern miracle of mediation” in terms perhaps not wholly flattering. I suspect he would have engaged in rigorous dialogue about its place and merits. However, what struck me about these recent events, juxtaposed as they were in time, is that they remind us the new is constantly wrestling with the old. In our evangelism about new things, we can forget the dignity and respect which the traditional ways of doing things command. In St Giles, no-one could have failed to be impressed by the majesty of the law or such speakers as Lord Mackay of Clashfern and Sir David Edward, whose achievements rank with the most accomplished of all Scots lawyers.

And yet … times are changing, everywhere. As author Seth Godin observes, new technology and greater access to knowledge, combined with harsh economics and the demand for innovative thinking, mean that reliance on traditional competencies as scarce commodities, or the preserve of the few, is not as strong as it was. People want problems solved quickly and creatively, in ways customised to their needs. Week in, week out, those of us acting as mediators observe clients engaged in litigation whose earnest wish is to see an end to it, a practical solution. “Why did we not have this conversation a year ago? …” “We need to bring this to a conclusion as we can’t afford to go on …” More and more lawyers are advising their clients to talk … early.

The European Parliament, following up the 2008 directive on mediation, observed that results achieved in certain countries “prove mediation can bring about a cost-effective and quick extrajudicial resolution through processes tailored to the needs of the parties”.

Management guru Peter Senge speaks of the new growing out of the old. On the evening before the service in St Giles, Graham Leicester, director of the International Futures Forum, reminded us of the need for the new to honour the old in times of change. However we look at it, we need to manage a transition in Scotland, as elsewhere, from the traditional norm of court-based dispute resolution to a flexible range of problem-solving methods. Both the old and the new are important or, as Leicester put it, we need to be able to ride two paradigms with one bum.

At the Strathclyde event, US attorneys described initial resistance to mediation by the profession’s leaders in Chicago and then how, over a period of time, they have come to embrace that which does not threaten the system but has led to its enhancement. The proposed Civil Justice Council may serve as the means by which this transition can be assisted in Scotland.

The point is that clients have choices for resolution of their problems. These days, they are making greater use of that range. There is a place for each – old and new, traditional and innovative – in a modern Scottish justice system.

• John Sturrock is chief executive of Core Solutions Group

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