Kenny MacAskill should really check with his Ministerial colleagues in Government first before embarking on 'do as we say not as we do' speeches ....
The Justice Secretary has decided to promote alternative dispute resolution (ADR) as an alternative for "people to resolve their disputes more quickly & effectively" but as many in the legal profession know, this doesn't really work unless there is at some stage enforcement, or requirement of adherence to Court judgements, which are certainly not to be found much in arbitration, adjudication or mediation methods.
While Mr MacAskill has been promoting the idea of ADR, it has been revealed colleagues such as Cabinet Minister for Finance John Swinney has been advising people to sue the Scottish Government after many years of failed mediation ! ... hardly a vote of confidence in ADR !
The Herald reports :
ROBBIE DINWOODIE, Chief Scottish Political Correspondent
Court should be the last resort in settling disputes, Justice Secretary Kenny MacAskill said yesterday.
He told MSPs that alternative dispute resolution (ADR) such as arbitration, adjudication and mediation could "enable people to resolve their disputes more quickly and effectively".
Building up expertise in ADR could lead to Scotland becoming recognised as an international leader in the field and somewhere to which global companies could take their disagreements, boosting the Scottish economy, he said.
Mr MacAskill said Scotland was "perhaps too reliant on traditional adversarial processes and laws.
"My aspiration is to make use of the formal court system the remedy of last resort rather than the remedy of first resort," he said.
Pressed by Tory MSP Gavin Brown on whether the Scottish Government would use ADR, Mr MacAskill said: "I don't think I can give that formal commitment because it depends on each and every matter. We would have to reserve the right to litigate and litigate urgently and immediately."
The minister told MSPs that at least one aspect of Scots law on arbitration dated back to 1695 and it needed to be modernised.
"The unsatisfactory state of the law here makes Scotland an unattractive place in which to arbitrate. As world trade continues to expand, there will be increasing demand for high-quality arbitration services to resolve cross border commercial disputes," he said.
He said an Arbitration Bill to modernise the system would be issued for consultation next spring.
The government wanted to develop a dispute resolution centre, which could attract international arbitration cases as well as domestic one.
"Scotland should be an easy place to do business and it needs the law and courts to back this up and make Scotland the jurisdiction of choice for resolution of disputes."
For Labour, Pauline McNeill said that at its highest level ADR was about "solving disputes and differences between commercial companies across national borders" but she said it could also help those who could not afford to take cases to the civil courts, including people involved in family disputes.