3. ALTERNATIVE DISPUTE RESOLUTION
3.1 Development of ADR
3.1.1 The Arbitration (Scotland) Bill, if passed by Parliament, will reform and consolidate the currently outdated and incomplete Scots law of arbitration. By putting the vast majority of the general Scots law of arbitration into a single statute, in future anyone in Scotland, or anyone seeking to do business in Scotland, will be able to find in one place the principles governing the law of arbitration in Scotland in language which can be readily understood.
3.1.2 To complement the new Bill, the Forum considered whether additional steps could be taken which would enhance the uptake of arbitration in Scotland generally. It was agreed that although most arbitration in Scotland takes place between those actually doing business in Scotland, Scotland should also be aiming to market itself internationally as a forum for arbitration that can offer high quality arbiters, facilities and legal support. There is in fact no need for the arbiter to be Scottish. For example, it would be quite feasible for a non-Scottish arbiter to sit in Scotland and hear arguments presented by both Scottish, English and/or other counsel (this happens routinely in the International Chamber of Commerce ( ICC) arbitrations in England and other countries, where the arbiters and lawyers are often drawn from different jurisdictions).
3.1.3 It was agreed that lessons should be learned from England, which has a leading reputation as a world centre for arbitration and which boasts many QCs with specialist expertise in particular practice areas practising as arbitrators.
3.1.4 Mediation, while not a universal panacea, is also a key dispute resolution option for businesses and should form an essential part of any modern civil justice system. Although some disputes will always require judicial determination through litigation or arbitration, a great many commercial disputes currently proceeding through the courts could be resolved by mediation, saving businesses considerable time, expense and uncertainty and freeing up court time for cases that truly require full judicial analysis.
3.1.5 Although mediation is widely available in Scotland, it has not yet been fully incorporated into the Scottish civil justice system as an option for routine consideration in every dispute. In this respect Scotland is not on an equal footing with other jurisdictions, including England and the United States. Reasons for this may include residual suspicion or scepticism amongst lawyers, general lack of awareness amongst businesses and inconsistency of endorsement (formal or informal) from the judiciary.
3.2 Recommendations
3.2.1 Scottish courts should be encouraged formally to acknowledge the role that mediation can play in resolving disputes, to incorporate consideration of it as an option into standard case management processes and to routinely recommend it to litigants in cases that may appear to the court to be suitable for it. (The stage at which it is recommended by the court should be decided by the court having regard to the particular circumstances of each case.)
3.2.2 The Scottish Government should, in collaboration with business interests and ADR communities, develop firm proposals for a Dispute Resolution Centre in Scotland, offering facilities for users of arbitration and other forms of ADR, including mediation.
3.2.3 The Scottish Government should reiterate publicly its support for mediation as a dispute resolution option for businesses and develop a proactive communications strategy to promote its wider use by the business community.
3.2.4 The Faculty of Advocates should consider ways in which advocates with particular expertise could be encouraged to practise as arbiters - perhaps by forming training links with relevant colleagues in England.
3.2.5 To increase the marketability and visibility of Scots lawyers in the arbitration arena, the Faculty of Advocates and Law Society of Scotland should consider adopting a programme of certifying their members as "appropriate to act as arbiters" through having requisite experience and knowledge in a particular field.