I will respond to Rona Mackay’s question, if I may. In some ways, she has identified the key to all of this, which is that people in Scotland with disputes should be able to make informed choices. I have no doubt that the provision of information is better now than it has ever been, and that many advisers now include in their advice to clients the fact that there are options other than litigation.
However, when matters become disputatious and are not capable of easy negotiation, it is fair to say that the prevailing culture in Scotland is to default to adversarial processes. In such processes, as Robin Burley hinted earlier, people inevitably set out their positions. They are involved in the paradigm of establishing right against wrong and have a win-lose approach. I suggest—and this may be where one becomes a little bit more tendentious—that there are significant societal, economic, business and community benefits for Scotland in moving towards a more consensual culture in which more disputes are dealt with co-operatively and consensually and therefore by negotiation, which may be aided or otherwise.
As a mediator, the phrase that I hear more than any other is, “I wish we’d had this conversation a year ago.” That is often said by experienced people—clients, businesspeople, parties and individuals—who are involved in significant litigation and who discover that, in the course of a day, they can indeed resolve their disputes, but have spent a considerable amount of time and incurred a lot of emotional and other stress and disproportionate cost.
I am considered in what I am about to say, but I am pleased to be able to put it on the record. I know that people will say that it is a special pleading, but I will try to distance myself from that. I am frequently shocked at the disproportionate amount that parties, including many lay people, have incurred in costs in litigation prior to achieving a solution in that litigation that, it seems to them and others on the day, might have been achieved at much less cost and with much less stress and anxiety.
Therefore it seems to me that, in Scotland, there is a possibility of our moving towards a more consensual approach to many disputes—though not, by any means, all of them. If we can invite, inform, encourage and advise people with disputes to use a range of options—including, as Robin Burley has described, interest-based negotiation, by which he means that people are able to work out what they really need and want and find the intersection of that—that would be a good thing. Mediation is never compulsory. Even if people are encouraged or compelled to use it, we can never compel them to agree. In that process, they can still decide not to reach an agreement and use other processes if they wish to do so.
Therefore I say to Rona Mackay that provision of information about the options is very important. However, other stimuli and incentives may be necessary in order to bring Scotland to a place that so many other jurisdictions have reached.