Mediation and Scottish Lawyers: Past, Present and Future

Clark, Bryan

doi:10.3366/e1364980909001383

Cited by 7 publications

(16 citation statements)

References 6 publications

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“…The enthusiasm of the English courts for the use of ADR to resolve disputes was driven by the Woolf Review (Woolf, 1996) and the subsequent introduction of the Civil Procedure Rules (Gould et al, 2009). The ability in the English rules to encourage the use of ADR has been backed up by comment and orders from judges in a series Nonetheless, it is difficult to trace similar judicial enthusiasm in Scotland, according to Clark (2009). There does not seem to be an equivalent rule in Scotland that encourages the use of ADR in either the Court of Session rules or the Sheriff Court rules.…”

Section: The Growth Of Adr In Scotlandmentioning

confidence: 93%

“…These were designed to test different models of provision to help inform discussions about future sustainability of mediation services. However, according to Clark (2009) these were confined to low value claims involving individuals rather than commercial disputes. Many commentators (e.g.…”

Section: The Growth Of Adr In Scotlandmentioning

confidence: 96%

“…Many commentators (e.g. Clark (2009)) have suggested that there is little demand for ADR in Scotland, citing judicial attitudes; change-resistant legal profession; and absence of an ADR body and lack of client awareness, as barriers to the further development of ADR within the Scottish arena.…”

Section: The Growth Of Adr In Scotlandmentioning

confidence: 98%

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Scottish construction lawyers’ awareness and experiences of alternative dispute resolution

Agapiou¹

2011

Proceedings of the Institution of Civil Engineers - Management,

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It is widely acknowledged that lawyers generally perform a gate-keeping role, advising clients on the most appropriate form of dispute resolution for particular cases. Is it reasonable to believe that the attitudes of the legal fraternity in Scotland create a real limit on what could be implemented by a government that seeks to promote modern methods of dispute resolution as part of its civil justice reform agenda? Drawn from questionnaire- and interview-based research, the principal aim of this paper is to fill a gap in the literature and establish baseline data on Scots construction lawyers’ awareness, attitudes and experiences of alternative dispute resolution (ADR) and implications for the resolution of construction disputes. There is evidence from the questionnaire survey and participant interviews that more education in ADR procedures and their application could provide further opportunity to develop them as settlement tools in Scotland by building on more positive aspects of responses within the sample analysis. Only some in the legal fraternity have embraced the challenge of what the study has found to be regarded widely as an opportunity. Further education, training and publication of case law involving ADR may be necessary to convince doubters that ADR needs to be part of the menu of methods of dispute resolution for the modern lawyer in Scotland.

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Section: The Growth Of Adr In Scotlandmentioning

confidence: 93%

Section: The Growth Of Adr In Scotlandmentioning

confidence: 96%

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Scottish construction lawyers’ awareness and experiences of alternative dispute resolution

Agapiou¹

2011

Proceedings of the Institution of Civil Engineers - Management,

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“…Quite rightly then educational efforts have often been targeted at the legal profession through increased exposure in university study and post qualifying level training. There is a small and growing cadre of lawyers that have become champions for the mediation process in Scotland (Clark, 2009) and we would expect this to continue to grow steadily.…”

Section: Resultsmentioning

confidence: 99%

“…The professed policy of many lawyers to encourage the use of mediation chimes with reports that many large law firms in Scotland have changed the name of their litigation departments to 'conflict resolution' hubs to reflect a more holistic approach to dispute resolution (Clark 2009). Nonetheless, it is difficult to determine how much store to put on such shifts in nomenclature or reported policies in favour of mediation use by lawyers, per se.…”

Section: Mediation Usementioning

confidence: 99%

A reflection on construction mediation in Scotland

Agapiou¹,

Clark²

2014

Proceedings of the Institution of Civil Engineers - Management,

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Recent research in different parts of the UK has pointed to growing acceptance of the mediation process from legal professionals with promises of potential costs savings for end-users. Nonetheless in many jurisdictions take up is low despite positive evidence relating to use and there is scant empirical knowledge about the construction lawyers' role in the referral of cases to mediation and sophisticated evidence relative to lawyer and client interaction in expediting the use of the process. This paper draws on recent work (both interview and questionnaire based) conducted over the past 24 months with construction lawyers and end-users relative to their experiences of mediation in the Scottish construction field. The findings reveal a small yet significant measure of generally successful mediation activity and growing support for the process among both lawyers and end-users. Nevertheless, barriers to mediation's acceptance remain well grounded, both throughout legal and client circles, and various solutions to overcoming such obstacles are examined in the paper. Evidence gleaned in Scotland has significance beyond its borders given the commonality of issues pertaining to mediation growth across all developing jurisdictions and the presence of a dominant adjudication regime that can be seen as a significant inhibiting factor in the use of mediation.

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