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Scottish business leaders make case for mediation

Scottish business leaders make case for mediation

2nd October 2020

A group of twelve Scottish businesses leaders, organisations and professional advisers have joined forces to campaign for greater use of mediation in dispute resolution.

Commercial disputes are continuing to arise as the Scottish economy begins to recover from the effects of the pandemic – but the Scottish courts and tribunals system is dealing with a significant backlog of cases.

At this time of increased conflict, while many of the traditional pathways to resolution may be blocked, the group believes mediation could play a major part in easing the pressure.

It comprises representatives of Wright, Johnston & Mackenzie LLP, Burness Paull LLP, North Coast 500 Ltd, Dentons UK & Middle East LLP, The 2Gether Partnership Ltd, Future Patchways, Transcend Change Ltd, University of the Highlands & Islands, MBM Commercial LLP, Gilson Gray LLP, Building Workshop and The Business Banking Resolution Centre.

Together they are urging the Scottish Government, publicly funded bodies, the Courts, third sector agencies and business organisations to address the situation by encouraging and making more use of mediation, and mediation skills, as a means to resolve disputes, manage difficult problems and build an effective post-pandemic economy.
In a joint statement, they said: “In a situation where public, third and private sector organisations require to focus attention and resources on moving forward, the Scottish courts and tribunals system presently has a significant backlog of cases which is likely to continue while the requirement rightly remains to give priority to the health and safety of users.

“As a result, it is unlikely that the courts and tribunals system will be in a position to cope fully with the short to medium term requirement for fast, fair and effective dispute resolution. In many other difficult situations outside the justice system that requirement is also likely to be greater in the months ahead.

“Mediation is a fast and cost-effective method for public sector, not for profit and business stakeholders to find solutions to the range of economic and social issues arising from Covid 19 – and more generally. It has a very good track record already. Mediation can be one of the cures to help alleviate some of the difficult challenges facing our economy and society as a whole.”

The potential of mediation is already beginning to gain more recognition – a recent report[i] by the Scottish Parliament Justice Committee made reference to the use of mediation to help clear the backlog of civil cases. This follows guidance issued from the UK Government on 7 May 2020 in response to the Covid-19 situation which also encouraged negotiation, mediation and other alternative or fast-track dispute resolution before contractual issues escalated into formal intractable disputes.

The group of Scottish business leaders believes now is the time to take action and cited a report by an Expert Group in Scotland which recommended a number steps to place mediation at the heart of Scotland’s approach to dispute resolution. They group’s members believe these recommendations n now have even greater importance and applicability in the emerging economic environment as we seek to grapple with the impact of the pandemic.

Ross Taylor, Partner, Wright, Johnston & Mackenzie LLP added: “Litigation is fundamental to dispute resolution, because its conclusions set the state’s expectations of societal behaviours. Bearing that in mind, I have found that mediation may best produce innovative and balanced solutions to diverse and evolving circumstances, for the benefit of willing stakeholders. Covid 19 is one such circumstance.”

Tom Campbell, Executive Chair, North Coast 500 Limited
Gareth Hale, Partner, Dentons UK & Middle East LLP
Pip Haydock, Managing Director, The 2Gether Partnership Ltd
Flora Henderson, Alliance Manager, Future Pathways, Scotland's In Care Survivors' Support Fund
James CMcG Johnston OBE, Director, Transcend Change Limited
Fiona M Larg MBE, Chief Operating Officer and Secretary, University of the Highlands and Islands
Cat MacLean, Partner and Head of Dispute Resolution, MBM Commercial LLP
David Morgan, Partner, Burness Paull LLP
Stuart Robertson, Partner, Head of Employment Law, Gilson Gray LLP
Rosemary Scrimgeour, Co-founder, Building Workshop
Lewis Shand Smith, Chair, The Business Banking Resolution Service
Ross Taylor, Partner, Wright, Johnston & Mackenzie LLP

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