Eskhill and Company is a partnership which majors in business coaching and mediation.  Both our partners are members of the Scottish Mediation Network and support its response to the review.   Both partners are also on the Scottish Mediation Regiser and we have contributed to the mediation service in the Edinburgh Sheriff Court for 3 years and in the Glasgow Sheriff Court for over 18 months.  We welcome that this Review includes as part of its remit to have regard to the role of mediation as a method of dispute resolution in relation to court process.  Our response focuses on our personal experience of mediation as an ‘in-court’ process for dispute resolution.  Between us we have experience of mediating some 60 cases in the Edinburgh and Glasgow Sheriff Courts and our comments are based on this experience.

 

5.1              Should the court (a) encourage, (b) require or (c) in some other way facilitate the use of mediation or other form of dispute resolution?

 

Our experience is that it is helpful for the Courts to require parties to consider mediation but it is important to retain the voluntary nature of mediation as an essential principle in the process.  In practice we find that with very few exceptions parties come to mediation with a clear intention to participate fully and the fact that we can advise them that they are free to leave if they wish adds rather than detracts from to their engagement with the process since it is carried through of their own free will despite the idea to try mediation having been at the initiative of the Sheriff.

 

5.2              Are there particular kinds of disputes in which the use of mediation or other methods of dispute resolution is not appropriate and in which a judicial determination is essential? Please specify.

 

We have not come across disputes referred to the ‘in court’ mediation services that were not appropriate for mediation and we believe there is more scope for disputes to be referred.  The key to success is not in our experience the nature of the dispute but the intentions of the parties and their willingness to engage with each other in a process of review of the circumstances of the dispute and negotiation towards a settlement.  Seemingly intractable disputes and irreconcilable parties can find acceptable ways to settle disputes through the mediation process.

 

5.3              What form should mediation or other methods of dispute resolution take and how should this be funded?

 

The mediation panels work well in both the two Sheriffdoms in which we participate and we believe that similar arrangements should apply in the future.  However, facilities in the Edinburgh Sheriff Court are basic and more comfortable facilities would improve the environment we try to create in a mediation.  We have carried out some 180 hours of mediation work between the two partners on a pro-bono basis since we became involved in the two Sheriff Court schemes and we have been prepared to do this in the belief that it will help to establish a sound reputation for mediation as a realistic alternative to litigation.  However, both partners engage in voluntary and charitable activities on a pro-bono basis in other areas of life and do not believe that it is appropriate to continue to subsidise a system of dispute resolution linked to a statutorily funded system of justice.  The present arrangements are not sustainable as ‘gift work’.  Mediators within the ‘in court’ system should be paid a fee for each ‘in court’ mediation conducted.

 

We hope that you find this contribution to the civil courts review useful.

 

On behalf of the Partners of Eskhill and Company

 

Robin Burley MBE FRSA MInstD MCIArb

 

and

 

Lindsay Burley FRCPE FRCGP FRSA MCIArb

 

Eskhill&Co                                                                

Visit: www.eskhill.com

Partners:  Robin Burley MBE FRSA MInstD MCIArb

              Lindsay Burley FRCPE FRCGP FRSA MCIArb

Robin: m: 07774 127809   e: robin@eskhill.com

Lindsay: m: 07831 605858   e: lindsay@eskhill.com

Eskhill House, 15 Inveresk Village, Musselburgh, East Lothian EH21 7TD

t: 0131 271 4000     f: 0131 271 7000

also at:

Mains of Rymore, Tulloch, Nethy Bridge, Inverness-shire PH25 3EF

t: 01479 831504