Recent Developments in ADR: A Scottish Perspective and Implications for Commercial Litigation
ADR Developments in Scotland and England: A Scottish Perspective
In recent years, alternative dispute resolution (ADR) processes such as mediation have gained traction in the legal landscape of both England and Wales, as well as Scotland. While the courts in both jurisdictions have shown support for ADR, recent developments have highlighted some key differences in approach.
In England and Wales, a series of court decisions established a principle that parties unreasonably refusing offers of mediation could face penalties in the form of increased costs liabilities. This approach, while not making mediation compulsory, incentivized its use in civil litigation.
On the other hand, Scottish courts have not adopted a similar general rule. The use of mediation in Scotland has grown more organically, driven by the familiarity and recognition of its benefits by legal practitioners and their clients.
Despite initial momentum towards promoting ADR in Scotland, recent initiatives have faced challenges. The Scottish Dispute Resolution Delivery Group, tasked with shaping reforms to promote mediation, dissolved due to external pressures such as COVID-19 and Brexit.
However, the current Scottish government administration continues to express support for mediation, focusing on expanding access to free mediation services across Scotland. This includes funding extensions for mediation services in simple procedure cases.
In contrast, the Ministry of Justice in England and Wales has announced plans to introduce a free mediation scheme for claims up to £10,000, making it a standard part of the legal procedure.
A recent decision by the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council has renewed momentum for ADR in England. The court ruled that parties can be ordered to attempt ADR, setting a significant precedent for the use of mediation in commercial litigation.
While the Churchill decision is not binding on Scottish courts, the reasoning behind it may influence Scottish judges. The Court of Session’s Practice Note already encourages parties to consider ADR in commercial cases, and judges have broad case management powers to facilitate ADR discussions.
The question remains whether Scottish courts would be willing to grant orders for parties to engage in ADR, following the principles established in Churchill. While there is no explicit support for such orders in current court rules, ongoing reforms in civil procedure rules may be influenced by recent developments in England.
As the legal landscape continues to evolve, the role of ADR in resolving disputes in Scotland and England remains a topic of interest for legal practitioners and stakeholders alike. Will Cole, a partner at BTO Solicitors LLP, provides valuable insights into the implications of recent ADR developments from a Scottish perspective.
