TAKING the adversarial line out of differences is surely the way forward, writes John Sturrock
Recently, I have been looking through some reviews into how we resolve disputes in Scotland.
The first to catch my eye was a report by the Royal Society of Edinburgh in early 2002, recording numerous recommendations by an expert panel chaired by former Lord Justice Clerk, Lord Ross. Entitled Encouraging Resolution: Mediating patient/health services disputes in Scotland, the report made a number of proposals. It said “litigation has and must continue to have a place in resolving medical negligence disputes, but should be used only as a last resort. We believe that litigation should be avoided unless absolutely necessary, and all those involved in medical negligence cases should work to reduce the number of cases that follow this route.”
In considering mediation, the report identified “a need for qualitative improvement in how medical negligence (and non-clinical) disputes are resolved, seeking outcomes that have a more encouraging impact on attitudes, culture, perceptions and relationships.” It said that “mediation is a process that would add qualitative value”.
In recent years, the Scottish Government has also been consulting on “no fault” compensation for injuries resulting from clinical treatment in Scotland. As other research confirms, a 2012 Scottish Government study showed patients’ primary needs are often for explanation and apology and a desire to protect future patients, with less concern about money compensation. The recently announced consultation on a “no blame” redress scheme places emphasis on a new system for paying compensation. I think it is fair to say that there is little or no mention of the use of mediation. There is a great opportunity now for joined-up thinking with the earlier RSE report to ensure that non-monetary aspects are also addressed.
In 2009, the Scottish Government instructed the preparation of a Guide to the Use of Mediation in the Planning System in Scotland, which was followed by a series of pilot exercises. The “output paper” following the pilots concluded: …”there is evidence of an interest in the use of mediation across the planning system. It would appear that mediation may be best employed where there is real prospect of parties being in a position to re-consider their positions. This would suggest that, for example, in development planning, mediation may be best employed early in the statutory process. The use of formal mediation techniques were generally supported by participants who also attributed value to an independent skilled mediator.”
The Scottish Government has just published an independent review of the Scottish planning system. While this does not appear to refer to the pilot exercises as such, the review offers a real opportunity to build momentum towards greater use of mediation.
In 2008, the Scottish Government published the Report by the Business Experts and Law Forum. This included recognition that “Mediation, while not a universal panacea, is … a key dispute resolution option for businesses and should form an essential part of any modern civil justice system. [A] great many commercial disputes currently proceeding through the courts could be resolved by mediation, saving businesses considerable time, expense and uncertainty and freeing up court time for cases that truly require full judicial analysis.” “Although mediation is widely available in Scotland, it has not yet been fully incorporated into the Scottish civil justice system as an option for routine consideration in every dispute.” The Report recommended that “Scottish courts should be encouraged formally to acknowledge the role that mediation can play in resolving disputes, to incorporate consideration of it as an option into standard case management processes and to routinely recommend it to litigants in cases that may appear to the court to be suitable for it.”
Most of these views could probably be expressed today. It is encouraging that the civil justice system is now moving forward quickly to accommodate the needs of users in the 21st century. In mediation, there is another significant option for the courts and businesses in Scotland.
I acknowledge that I have an interest in all of this. I was a member of the RSE group and co-authored the planning guide. I am not impartial. I have made mediation my career in recent years. Week in, week out, I see apparently intractable disputes resolved in mediation, usually in a day, and clients expressing relief and pleasure that they can now get on with life and business. I believe from my own experience, and that of many others, that medical claims, planning applications and business disputes will all be more effectively addressed if mediation becomes a central part of the way we handle disagreements in Scotland.
• John Sturrock QC is senior mediator and chief executive of Core Solutions.