Businesses turn to dispute mediation amid court backlog

Businesses are turning to mediation to resolve legal disputes as Covid-19 continues to impact Scotland's courts, writes Euan McSherry.

The Scottish Parliament heard last month that the Scottish justice system could face a backlog of more than 3,000 cases by 2021 as a result of social distancing measures required to reopen courts reducing capacity by two-thirds. The Dispute Resolution team at Aberdein Considine has a large number of actions before courts in Scotland’s six Sheriffdoms, in the Court of Session and in the First Tier Tribunal. We know that we are far away from business as usual. The figure of 3,000 feels low.

The lockdown has shown that, in large part, the Scottish Court’s various procedural rules do not offer sufficient flexibility to make court litigation attractive to many with disputes in the digital age. The pace of implementing change and the extent of the changes implement do not compare favourably with what has been possible in the Courts of England & Wales. Our expectation is that court delays will be wide-spread and will be substantial.

Every client considers its dispute to be important and wants a timely resolution rightly. Court delays force clients to revisit provisions made for costs in their accounts, costs often increase, and they become frustrated understandably.

Progress

In contrast to most court litigations, we have seen adjudications, arbitrations, mediations and expert determinations effectively progress during lockdown. These alternatives to court, collectively referred to as alternative dispute resolution (ADR), generally offer parties greater flexibility to court actions, in relation to procedure and the presentation of evidence. An ADR dispute can be expected to progress effectively as restrictions are lifted and to achieve a timely resolution.

It is never too late to mediate. Mediation is a process which is voluntary, private, informal, collaborative and confidential. When parties choose to have their dispute mediated, they get to set the ground rules. It is not adversarial, not subject to external rules and not subject to appeal. A mediated resolution of a dispute can be more effective, more flexible and more durable than an order imposed by a court.

Among the litigation Partners and Solicitor Advocates in the team, we have qualified Mediators, appointed Arbitrators and Experts in determinations and wide experience of advocating for clients in these ADR fora, whether pursuing or resisting urgent claims, in a range of commercial, contract and property areas.

Contact us

If any issues arising out of this article are of interest, please contact Euan McSherry, Aberdein Considine’s Head of Dispute Resolution at emcsherry@acandco.com or 07818 097172.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. Aberdein Considine is not responsible for any activity undertaken based on this information.