Mediation can dial down the drama in a crisis - Carolyn Morgan

If you’re a fan of Succession, you’ll have been glued to last week’s finale, which determined the fate of international entertainment conglomerate, Waystar Royco.

Was your money on Shiv, Roman or Kendall, the siblings battling for control of the company founded by father Logan?

Over four series, the “sibs” wrestled for supremacy while simultaneously fighting off or collaborating with acquisitive vultures circling the nest.

Although purely fiction (any similarities to the Murdochs are coincidental), the series illustrates the ease with which companies and individuals can find themselves in a dispute, whether in court or not.

​Carolyn Morgan is a partner at Harper Macleod

Disputes are not the preserve of the rich and famous. They are frequent in all walks of life. It is the reality of business, professional and personal lives that disputes occur in a broad range of valuable and/or important commercial matters, in workplace conflicts, between landlords and tenants, family members administering a deceased’s estate and with feuding neighbours.

Disputes reaching court are far from rare, despite the Scottish court system’s much-publicised delays, many as a result of the pandemic. However, by taking a different route, court can be avoided and hostile parties can still achieve a legally binding resolution whilst possibly preserving what is left of a relationship, providing a better basis to improve a relationship, and /or leading to a resolution in a more private, discrete forum than open court.

Mediation, as a voluntary and confidential process, deploys the skilled services of a neutral third party, a mediator, who attempts to facilitate negotiation by the parties of an agreed settlement. It provides a forum for parties to have conversations, address difficult issues and try to work through differences. It can also help restore, enhance and rebuild relationships. Parties retain control over the outcome rather than leaving it to a judge or other third party, and agree on remedies and solutions that courts cannot necessarily provide.

Whilst invaluable as an option and highly suitable for many disputes, mediation cannot be a truly mandated process or be suitable in every contentious setting. It requires the commitment of both parties to engage positively.

In England, the Civil Procedure Rules and pre-action protocols place parties under a duty to consider whether some form of alternative dispute resolution (ADR) might enable them to settle their dispute without commencing proceedings. Litigating is regarded as a matter of last resort in most cases. The court can require parties to provide evidence that ADR has been considered and at the conclusion of a case, impose cost sanctions on those who refuse to engage with or withdraw from the ADR process without good reason.

The position is different in Scotland. Although courts might encourage mediation in certain cases, there are no cost sanctions imposed for failure to engage in mediation. A 2019 consultation considered a Mediation (Scotland) Bill to be introduced whilst industry body, Scottish Mediation, published a report examining bringing mediation into the civil justice system. The Scottish Government is committed to the development of mediation, so the hope is that many of the recommendations contained in the report will be implemented.

We’ll never know whether Shiv, Roman and Ken could have found themselves in court to resolve their arguments. If they'd opted to mediate earlier in their litany of disputes, we'd not have enjoyed four series of gripping drama. However, as any party who has been through the commercial courts in a real-life litigation would tell us, an earlier satisfactory resolution is usually welcome, hence the attraction to mediation.

Carolyn Morgan is a partner at Harper Macleod.