One of my favourite television adverts was the genius O2 campaign “Be More Dog”. You might remember that it follows a day in the life of a cat: “I used to be a cat, aloof till lunch then coldly indifferent after”. Suddenly the cat realises its tedious existence could be fun if only it could “be more dog”. Cue the cat, its head now on a dog’s body, launching out the cat flap to Queen’s “Flash”, chasing a ball, catching a frisbee and digging holes (“running… amazing, chasing cars… amazing, sticks… amazing!”). In a comical way, it epitomised what commitment to a change of mindset can achieve.

For years, many dispute resolution lawyers have been beating the mediation drum, seeking to change the mindset of those litigation lawyers of a more traditional courtroom culture. The COVID crisis has put mediation, particularly online, in the spotlight. For the first time, the global dispute resolution community of mediators, arbitrators, litigators and others are widely promoting mediation as an effective and appropriate way of managing the huge surge in litigation, and the backlogs in civil justice generated by the crisis.

Scotland: stuck in a tunnel

However, in Scotland, the uptake of mediation remains comparatively low. In the US, perhaps surprisingly, the majority of disputes (for example around 98% of litigated cases in California) are mediated as soon as court proceedings are commenced. That’s largely influenced by costs not automatically following success, and the prevalence of lawyers charging contingency fees. In England, parties are often incentivised to mediate due to the potential for adverse judicial costs (expenses) awards if a reasonable offer to mediate is refused. In some regions of Ontario, Canada, mediation has been a mandatory and automatic stage in the court process for 20 years. This could soon be extended to the whole province, following support from the Ontario Bar Association.

In Scotland, mediation is an entirely voluntary process, requiring both or all parties to consent to engage in. There are no incentives to consider or recommend mediation, as there are England. Nor do we have a culture of contingency fees which aligns the lawyers’ interests in getting paid with the clients’ interests in a quicker and more cost effective resolution. So, while it is common for one party to a dispute to advocate for mediation, in reality getting all parties round the table is often a negotiation in itself.

There may soon be some light at the end of the tunnel. The Scottish Government plans to consult on the proposals of the Scottish Mediation Report, Bringing Mediation into the Mainstream in Civil Justice in Scotland. In a nutshell that report makes bold recommendations to introduce an element of compulsion to mediate. So, it is possible we will see legislative changes to promote the use of mediation in civil justice in Scotland.

Agree in advance

Until then, transactional lawyers, in-house lawyers and business leaders have a secret weapon at their disposal: the insertion of clear and concise dispute resolution provisions in contracts. A dispute resolution clause is one of the most vital provisions in any contract. It allows the parties to agree within the contract the process to be followed in the event a dispute arises. There is much to be said for agreeing how a dispute will be dealt with while the parties are on good terms. Once a disagreement or dispute raises its ugly head, parties are usually less willing to adopt a collaborative approach to the process of resolving their differences.

Multi-tiered dispute resolution clauses (sometimes called dispute escalation clauses) are increasingly used by businesses, enterprises and organisations across all sectors and in a wide range of contracts to assist with resolving disputes quickly, efficiently and cost-effectively, and potentially preserving the contractual relationship. Such clauses allow a claim to be escalated in stages, typically by binding the parties to engage first in negotiation at different levels within each party’s business, followed by mediation, as a precondition to arbitration or litigation. Often the clauses will go further and name the organisation from which a mediator (and arbitrator) must be chosen, thereby preventing further potential for disagreement and delay in choosing a third party neutral (www.squaringcirclesodr.uk/dispute-resolution-clauses/).

Provided the terms of a dispute resolution clause are sufficiently clear to create an enforceable obligation, the courts will enforce the terms the parties agreed when they executed the contract. While there have been no reported decisions on the enforceability of such clauses in Scotland (perhaps an indication that they are not used nearly enough), in a number of decisions in the English courts over the last 20 years, parties have been prevented from progressing with court proceedings where the dispute resolution clause has created a contractual obligation to engage in mediation as a condition precedent to litigation. There is no reason to believe the Scottish courts would have decided these cases any differently.

This article first appeared in the October 2020 edition of The Journal of the Law Society of Scotland

Sixty one years later, a very different crisis is changing the world. Social distancing restrictions have catapulted the global legal profession into the 21st century by forcing the universal use of technology. Scottish courts, especially sheriff courts, have been slow to adapt, with only very limited business yet capable of being dealt with remotely. Most Scottish tribunals are closed to existing and new business. Mediators have been quick to move their face-to-face practice to Zoom. Suddenly, online alternative dispute resolution (“ODR”) is in the spotlight.

ODR combines ADR processes, technology and impartial independent experts. It is recognised internationally as a specialised and highly effective form of ADR. Its origins date back to the 1990s when it was created to resolve disputes resulting from online transactions and interactions between parties in different jurisdictions. In 2013, Lord Neuberger, then President of the Supreme Court, said in a speech on Judges and Policy: “We may well have something to learn from online dispute resolution on eBay and elsewhere.” The eBay Resolution Center now handles over 60 million disputes each year, while courts have been slow to adopt online or hearing-free models. 

All methods of exploring the resolution of a dispute with the assistance of technology are ODR. It can involve advanced technologies and processes such as machine learning, artificial intelligence and cognitive computing which are being developed and promoted to resolve specific types of disputes. More importantly for the practice of law, it is the movement online of face-to-face mediation, arbitration and other resolution processes, using videoconferencing combined with secure onboarding, e-signing of agreements, document sharing and online communication, to deliver fair, proportionate and effective redress for commercial and civil disputes.

The momentum of global ODR continues to increase in many jurisdictions in Europe, the US, Canada, Australia and New Zealand, in the public and private sectors. Hong Kong has recently announced a scheme as part of its measures to support individuals and businesses affected by the COVID-19 crisis. The tragic loss of life and collapsed businesses are undoubtedly the “danger”. But there is also an “opportunity” for disputes lawyers in Scotland.

First, ODR (and ADR) gives lawyers an opportunity to better serve their clients and society as a whole. Access to justice is problematic for many businesses and individuals in Scotland. Litigation, even in the commercial courts with judicial case management and specialisation, is disproportionately expensive, slow and uncertain. A dispute which runs to proof is unlikely to cost much less than £100,000. For many disputes, that figure is conservative. Legal costs for commercial disputes will often run to several times that figure, resulting in parties spending as much time arguing about the costs as over the claim.

Secondly, ODR gives lawyers an opportunity to grow their client base and their income. There are a huge number of commercial and civil disputes in Scotland which get nowhere near law firms due to the cost of taking legal advice, commencing and running litigation. Other professionals are assisting clients with all sorts of disputes and attempts to negotiate resolutions. Professional bodies such as the RICS offer well regarded dispute resolution services for a wide range of property disputes. As we enter what is predicted to be the biggest recession in centuries, litigation is going to be a non-starter for an even greater proportion of Scottish businesses. Research from the US reports that by using ODR parties can save as much as 80% of the costs of litigation in as little as 20% of the time. The economics of ODR mean that claims that were previously unaffordable or cost-prohibitive can be progressed or pursued.

Thirdly, ODR gives lawyers an opportunity to make face-to-face dispute resolution more efficient and cost effective. The background to a dispute can be explored in more detail using online processes such as videoconference, secure and confidential discussion “channels”, or parties to the dispute uploading video statements explaining the dispute from their perspectives. This allows the neutral expert to clarify key elements in more detail and to hit the ground running when the face-to-face dispute resolution process starts.

It is difficult to argue that ODR will not be at the core of the future of dispute resolution. The world today is very different to how it was even two months ago. The new normal will see a continued use of remote working with the use of technology, and lawyers will need to embrace ODR. In the long run it will result in more work and happier clients. And for the sceptics, some wise words from a pioneering Scot, Alexander Graham Bell: “When one door closes, another opens; but we often look so long and so regretfully upon the closed door, that we do not see the ones that open up for us.”

This article first appeared in the May 2020 edition of The Journal of the Law Society of Scotland

Tomorrow we take to the polls in what has been, latterly, a roller-coaster campaign trail. Only two weeks ago pollsters YouGov predicted a Conservative landslide with a 68 seat majority. Today its new projection is that Boris Johnson is on course for a majority of only 28 seats. Due to the margin of error in the forecasting model, this latest and final YouGov poll ahead of election day, throws into focus the very real possibility of a hung parliament and a return to coalition politics.

The last coalition was forged through negotiation and the skilful management of competing interests to find workable solutions to deliver a stable government. A hung parliament and a shift from bipartisan political support presents a very real opportunity to better meet the needs of the UK electorate. Working collaboratively and cooperatively to dissect manifesto promises presents an opportunity for more creative thinking to deliver innovative “non-binary” solutions, going beyond what one party could achieve alone.

We have already seen collaborative politics in action on the campaign trail in relation to Brexit. Nigel Farage’s “country before party” initiative will see no Brexit Party candidates standing in Conservative held seats to protect the pro-Leave vote. Similarly, the Liberal Democrats, the Green Party (of England and Wales) and Plaid Cymru have entered into a “remain alliance” agreeing not to stand against each other to protect the anti-Brexit vote.

But a hung parliament and an increase in collaborative politics is not going to be enough to diversify the political leadership of our nation. For that, we need (at least) two things to happen. Firstly, we need to replace the first past the post voting system with a form of proportional representation (“PR”). It is well known that most stable democracies in the world use PR as a means of maximising the voice of the electorate. The UK is in the minority, with Spain and Belarus being the only other European countries to adopt a single-winner voting system. Outside of Europe the US, Australia and Canada are the only other developed countries not using PR.

Secondly, and more importantly, we need a courageous electorate who recognises the real need for change and a willingness to challenge the status quo. Popular culture frequently tells us there is no credible alternative to the Conservatives: no-one else is capable of running our country; or that voting for the SNP dictates a preference for an independent Scotland. I for one do not accept such positions.

If you need proof of how taking a chance can change things for the better take a look at New Zealand. Jacinda Ardern was elected into office less than three months after becoming leader of the Labour Party in 2017. At that time she was also the youngest female head of government at 37 years old (with that accolade recently passing to Sanna Marin, the 34 year old PM of Finland who took office yesterday). Ms Ardern was only elected to Parliament personally (rather than as being a List MP) five months before that. Unknown quantities don’t come much bigger. Yet, she has been lauded as the one of world’s most effective leaders.

So, it is my hope that we can all be courageous like the Kiwis when we enter the voting booth tomorrow. Our fast, emotional and intuitive minds (the first system of our brain referred to in my last blog) is very effective at causing us to instinctively reduce uncertainty by choosing what our brains believe to be a familiar and safe path (“better the devil you know”). Instead, we need to mobilise our slow, deliberate and logical minds (the second system) to challenge those cognitive biases and ask ourselves, do we genuinely believe that the current political situation is one we want to continue?

And, in the event of a hung parliament, as officials work late into the night and the weekend to thrash out deals behind closed doors, the spotlight will shine on negotiation, cooperation and collaboration – the true essence of politics in liberal democracy and a fundamental skill used by dispute resolution specialists across the country. It will be those skilled negotiators at the table who, through effective negotiation, mediation and conflict management techniques, will come out winners next week.