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Alternative Dispute Resolution in Scotland - Research Findings

DescriptionTo examine the nature and extent of Alternative Dispute Resolution and to identify key issues for policy and research relevant to future development in this area.
ISBN
Official Print Publication Date
Website Publication DateDecember 29, 1998
Legal Studies Research Findings No. 4 (1996)
Alternative Dispute Resolution in Scotland
ISBN0-7480-5658-0Publisher The Scottish OfficePrice £5.00
Between the months of January and March 1996, a survey was undertaken to examine the nature and extent of the application of Alternative Dispute Resolution (ADR) within the civil justice sphere in Scotland. The study further sought to identify key issues of policy and research relevant to the future development of ADR in Scotland. Some 67 field interviews were undertaken and 40 solicited questionnaire responses were obtained from those actively involved or interested in ADR processes in and around Scotland. The research, commissioned by The Scottish Office Central Research Unit, was undertaken by Richard Mays and Bryan Clark at the Robert Gordon University, Aberdeen.
Main findings
  • ADR is concerned with finding new, alternative ways of resolving disputes, usually outwith the courts. No clear definition or terminology is agreed upon, but it includes a range of activities such as mediation, conciliation and other generally consensual dispute resolution mechanisms.
  • The most common form of ADR offered in Scotland is mediation.
  • A number of initiatives in ADR across different civil dispute areas, including the family, commercial, consumer and community dispute spheres, have been developed over recent years.
  • Despite this, the study uncovered very limited evidence of actual ADR practice in all but the family dispute field.
  • Barriers to the acceptance and use of ADR processes within the Scottish civil justice sphere may include a lack of awareness of both the concept and availability of ADR in Scotland, and a resistance to the acceptance of ADR throughout both the legal profession and the wider community.
  • There is a multiplicity of training options within individual dispute areas but little uniformity in approach as regards training provisions for those entering ADR practice across different dispute areas.
  • Evidence of provision for on-going training and development of those entering ADR practice proved variable throughout different dispute areas. Within the family and community dispute spheres, on-going training and development is available, prescribed and perceived as crucial to effective ADR practice. There is little evidence of on-going training and development available for those entering ADR practice within the commercial sphere.
  • There is currently no external regulation of ADR activities within Scotland.
  • Internal regulation mechanisms, supervisory controls and monitoring of approved practice were evident to varying degrees within different dispute areas, ranging from comprehensive within the voluntary, family sector, to minimal within the commercial sphere.
  • ADR activities are currently funded in a number of ways. For example, within the commercial sphere, it is normal practice for the disputing parties to share equally the costs of the mediation session. Legal aid is available for eligible parties who wish to use mediation to resolve issues arising from divorce or separation. In other areas, eg the community sphere, mediation services (where available) are primarily state-subsidised and available on a free basis to disputing parties.
  • The relationship between the legal profession and ADR has provoked much academic debate. The study revealed a growing number of legal professionals entering the arena of ADR practice. It can be estimated that there are in total, circa. 90 Scottish lawyers trained and accredited as mediators within the commercial dispute sphere. Within the family dispute sphere there are currently 45 lawyers accredited by the Law Society through its family mediation service, CALM. The study revealed very little involvement of the legal profession within the community dispute field.
Background to the study
Disputes can arise within a number of different contexts in our society, including commercial activities, employee/employer relationships, matrimonial relations and general community life. Both the financial and other 'social' costs generated by disputes within these different settings can be a drain on both the resources and resolution not only of the disputing parties themselves but also of the State and the wider community. Hence the ability effectively to resolve disputes is a major concern for society as a whole.
In recent years there has been an increase in the provision of new, alternative dispute resolution services. Modern Alternative Dispute Resolution (ADR) processes have their roots in the USA where they have been under development since the early 1970s. In more recent years, developments in ADR have begun to make an impact in Scotland.
Dissatisfaction with traditional forms of dispute resolution is often cited as a primary factor in the seeking out and development of new, alternative dispute resolution fora. In short, this can be summarised as a general dissatisfaction within normal adjudicative processes in respect of time, costs, accessibility and inappropriateness of forum. Those in favour of ADR promote it as quicker, cheaper, less stressful and an altogether more harmonious method of handling disputes. In addition, proponents of ADR point to the greater degree of control that parties can exert over the settlement process.
How ADR is defined and described has been subject to considerable academic debate and a number of definitions have been developed. Some commentators have argued that the term ADR encompasses all dispute resolution methods outwith the courtroom. Others perceive ADR to relate to a particular set of dispute resolution processes which share common characteristics such as the exercise of control by the parties over their dispute, the assistance of a third party 'neutral' in the resolution of the dispute, and the focusing on the mutual interests of the disputing parties rather than the idea of 'winners and losers'. Taking a practical approach, we found the following particularly useful in defining the parameters of our study. ADR can be said to be "any method of resolving an issue susceptible to normal legal process, without resorting to that process. It includes mediation and other consensual procedures. It excludes litigation and arbitration" Mediation, the ADR process which is most widely evident in Scotland, is essentially a process of structured negotiation whereby disputing parties are assisted by a third party 'neutral' to reach their own resolution to their conflict.
Recent developments regarding ADR in Scotland
Aside from the conciliatory approach which ACAS has carried out in relation to the resolution of employment disputes since 1974, it is only within the last decade or so that ADR procedures have received much recognition (at least in any formalised sense) within other civil dispute areas in Scotland. The recent developments in ADR within Scotland have occurred in a variety of different settings and to a large extent these can be divided into individual dispute areas, including the commercial, family and community spheres. It should be noted that developments in the ADR field have not occurred in a uniform fashion across the different dispute areas. To a large extent developments across individual dispute areas have very separate origins and actually overlap very little.
Family Mediation
The first developments in ADR within the civil justice arena can be found within the sphere of family disputes. In 1984 the first family mediation (originally termed 'conciliation') service was established in the Lothian region. This service offered a free independent mediation service to divorcing or separating couples in dispute over issues relating to the custody of and access to children. A national organisation, The Scottish Association of Family Conciliation Services, now Family Mediation Scotland, (FMS), was established in 1987 to promote and support a network of regional affiliated family mediation services throughout Scotland.
In addition to the family mediation services co-ordinated by FMS, the legal profession in Scotland has now established its own family mediation service. In December 1994, 'CALM' (Comprehensive Accredited Lawyer Mediators) was established. CALM consists of a group of family law specialists trained in mediation practice and accredited by the Law Society of Scotland as family-lawyer mediators. CALM offer a mediation service on 'all issues' arising from separation and divorce. There are presently 45 accredited CALM mediators in Scotland. This number continues to grow steadily. Legal aid is now available to eligible parties for mediation in family cases.
Commercial ADR
It is only over very recent years that developments in ADR have made any impact within the Scottish commercial sphere. In April 1994, the Faculty of Advocates introduced a mediation service consisting of a panel of nine accredited mediators. The Law Society of Scotland has, since July 1994, promoted an ADR service, 'ACCORD' and accredited solicitors trained in mediation skills and techniques. There are presently 57 ACCORD accredited lawyer-mediators. This number continues to grow steadily. In June 1994, a cross-disciplinary mediation organisation was established. Over 70 individuals (including 25 lawyers) have now been trained by this organisation as mediators, and a number of others are currently involved in on-going training. In addition to these initiatives, in July 1995, Citizens Advice Scotland (CAS) launched a pilot programme, based in Edinburgh, offering a free mediation service to parties embroiled in consumer and other small business disputes.
The study also revealed an increasing awareness of and interest in ADR by a number of professional bodies such as the Institute of Civil Engineers, the Royal Institute of Chartered Surveyors, the Chartered Institute of Management and the Institute of Chartered Accountants in Scotland.
Community Mediation
Over very recent years, ADR programmes have been developed to tackle community and neighbourhood disputes within Scotland. The study uncovered details of five 'community mediation' schemes which have either been established or are currently under development in Scotland. Two of the schemes, in Edinburgh and Dundee respectively, were established in March 1995 and are financed primarily by Scottish Urban Aid funding. These schemes provide a free independent mediation service (facilitated by trained, volunteer community members) to assist in the resolution of neighbourhood and community disputes. Typical cases falling within the remit of these schemes include, noise pollution, problems relating to the behaviour of children, anti-social and abusive behaviour and boundary disputes. Three further schemes established in Glenrothes, Kirkcaldy and Livingston respectively are in fairly early stages of development at present.
The extent of ADR activity in Scotland
Despite the fact that these recent initiatives in ADR have occurred within Scotland, the study revealed that there continues to be a real lack of actual ADR practice in all but the family dispute sphere. In relation to family mediation, in the year 1994-95, FMS handled 3,669 case referrals. The 21 CALM family mediators who responded to the study indicated that they had dealt with circa. 170 cases in total to date, with many reporting their rate of referral to be increasing steadily.
In contrast to the steady rate of case referrals within the family dispute area, the study revealed very little evidence of actual ADR practice within the Scottish commercial sphere. The 32 ACCORD mediators who responded to the study indicated that they had mediated in only 17 cases in total to date. Indeed 24 of the 32 respondents indicated that they had been unable to gain any practical experience in mediation whatsoever. Moreover, the Faculty of Advocates mediation service reported handling only two cases since its inception in 1994. Similarly, the CAS consumer dispute scheme reported that it had mediated in only three cases to date. Commentators within this dispute area blamed the low case referral rate on a number of factors, including a lack of awareness of the availability of ADR within Scotland and a resistance to 'new ideas' throughout both the legal profession and the wider business community.
Within the community dispute sphere, the two fully established schemes in Edinburgh and Dundee reported a marked divergence in their respective case referral rate in their first year of operation. The Edinburgh programme indicated that it had handled in excess of 100 disputes whereas Dundee could only report to having received 14 case referrals to date.
Key policy and research issues
Academic debate and dissension surround a number of issues concerning the application of ADR processes in this country. In particular, questions have been raised in respect of the training and regulation of ADR practitioners and the funding of ADR services. Opinion has also been voiced in relation to the role of the legal profession within ADR and the whole question of the relationship between ADR and the legal process in general. The study canvassed respondents' views on these and other issues relevant to the future development of ADR within Scotland.
Training
Commentators have criticised ADR on the grounds that there is a multiplicity of options and little uniformity of approach as regards the training of those entering ADR practice. The majority of the mediators who responded to the study viewed their own training as adequate to equip them to enter ADR practice, particularly within the arena of commercial disputes. Commonly held perceptions in this respect included the notion that there was 'only so much that can be taught' and that the purpose of ADR training is to build on existing personal aptitude, innate ability, learned skills and professional experience. Some respondents (particularly those involved in family and community mediation practice) did recognise, however, the need for and the benefit of, on-going training and professional development.
In relation to criticisms surrounding the lack of uniformity in training, many respondents viewed there to be political and professional-interest barriers to the development of uniform training options even within individual dispute areas. In addition to this, a number of respondents were of the opinion that there was no single approach to mediation practice which could be applied across all dispute areas. It was viewed, therefore, that the training of those seeking to enter mediation practice may need to be tailored to suit the requirements of individual dispute areas.
Regulation
Other academic concerns have centred on the fact that, like other informal justice processes, ADR lacks codification and regulation and therefore has no safeguards against injustice for disputing parties. At present there is no external regulation of ADR practice in Scotland, and anyone regardless of qualifications, training or professional background can purport to offer an ADR service. From our research we have been struck by the diversity of opinion that respondents have canvassed in relation to this matter. Some respondents viewed that it was too soon to attempt to regulate ADR practice and that ADR must be allowed to continue its development unshackled by regulation and proceduralisation. Others warned that to regulate and over-proceduralise would run contrary to ADR's merits of creativity and flexibility. In contrast to this, other respondents viewed that proper regulation is essential to ensure uniformity of approach, assure quality of service for disputing parties and to guard against piece-meal and arbitrary progress which may weaken the scope for ADR's future development. A number of respondents were of the opinion, however, that to standardise regulation of ADR activities across professional boundaries would be fraught with difficulties.
Funding
One of the key questions regarding the development of ADR in this country has been, 'who should pay for ADR?'. In relation to this question, the lack of secure funding was cited as a major concern by those involved in the provision of ADR services within the (voluntary) family, consumer and community dispute spheres. Respondents active within these dispute areas were of the opinion that the present limited funding commitments were stifling the potential for the growth and development of their ADR activities.
Legal aid is currently available for parties resolving matrimonial disputes through the service of a CALM mediator. The study revealed widespread support from those involved in mediation practice for the provision of legal aid to be made available in other dispute areas.
ADR and the Courts
Through Rules of Court, both the Sheriff Court and the Court of Session are empowered in matrimonial matters to refer disputing parties to a family mediation service. The study revealed considerable support from those involved in the provision of ADR services for the inception of a scheme of court-referred mediation in non-matrimonial matters. It was considered that such a development would increase ADR's profile both within legal circles and the business community and also import on mediation a heightened credibility as a process referred to disputing parties by the independent judiciary. The majority of respondents did view, however, that ADR should never be perceived as replacing the traditional legal process and hence should remain a voluntary option.
Lawyers and ADR
Some commentators have warned of an impending 'highjacking' of ADR by the legal profession. In this respect, the study revealed that those lawyers who had trained as mediators, in general, at least espoused genuine motives for their involvement in ADR - most perceived ADR to be a 'better way' to resolve disputes. Some criticism was aimed at the Law Society of Scotland, however, (not least by lawyer-mediators themselves), of the fact that it was not actively promoting ADR. To this end, some commentators suspected that the Law Society of Scotland's motives in establishing ADR services appeared to lie with the promotion of their members' interests within ADR, rather than the promotion of ADR itself.
In relation to the question of the suitability of the legal profession to enter ADR practice, the majority view canvassed by both lawyers and non-lawyers was that ADR practice need not be the exclusive preserve of the lawyer or the non-lawyer. It was viewed by a number of lawyer-mediators, however, that given the highly specialised legal issues involved in certain disputes, (eg those in relation to financial and property matters arising from separation and divorce), legal skills, knowledge and experience were a prerequisite to effective ADR practice.
Conclusion
Much has been said and is undoubtedly believed about the concept and practice of ADR. The fact remains, however, that given the lack of empirical study into ADR, very little is known about its application and use in this country.
The aim of this study is to establish a picture of the extent that ADR processes have begun to impact on the Scottish civil justice arena, including the commercial, family and community dispute spheres. In addition to this, the study sought to identify and describe areas of policy and research interest and propose key future research required on ADR by canvassing the views of those involved or interested in ADR in and around Scotland. Respondents to the study included accredited mediators, ADR service-providing organisations, academics, business organisations and other interested parties.
The report provides a 'snap-shot' of activities at the time of the study. This, and the modest scale of the project, inevitably mean there are gaps in the coverage. However, it is a preliminary foray into ADR.
About the Study
In January 1996 the Legal Studies Research Group of The Scottish Office Home Department commissioned Richard Mays and Bryan Clark of The Robert Gordon University to undertake a brief survey of the state of ADR in civil law in Scotland.
Copies of the full report are available from the authors at the Robert Gordon University, priced £5.00.
This Research Findings may be photocopied. Alternatively, further free copies, or information about the Central Research Unit's Research Programme, can be obtained by contacting:
The Scottish Office Home Department
Central Research Unit
Room J1-0
Saughton House
Broomhouse Drive
EDINBURGH
EH1 3XA
Tel: 0131-244-2112 Fax: 0131-244 2109

The report can also be ordered online from:www.thestationeryoffice.co.uk