Justice Monopoly for lawyers : Law Society propose embedding its profitable hold on mediation & dispute resolution in Scots Civil justice system

In an effort to stymie consumers from choosing alternative systems of dispute resolution which do not involve profits being channelled to solicitors & law firms, the Law Society of Scotland is to propose that it’s own carefully cultivated stranglehold on alternative dispute resolution, which is also known in Scotland as ‘mediation’ must be embedded in Scotland’s Civil justice system, to ensure the Society maintains its profitable grasp over consumers legal troubles and disputes.

Coincidentally, as many users of alternative systems of dispute resolution in Scotland have begun to notice, most of the staff, or mediators at these organisations appear to be either members of the Law Society of Scotland or are in business with law firms & individual solicitors, leaving consumers with little choice other than to use expensive services linked directly or indirectly to Scotland’s monopolistic legal profession.

The Law Society’s terms for ensuring anyone with a dispute must pass through it’s profitable gates will be heard at a conference in Edinburgh on Wednesday 16 May. The gathering, and the Society’s efforts to dominate dispute resolution of all & any form is, strangely backed by the Scottish Government and tens of thousands of pounds of taxpayer cash pumped into various mediation projects such as the Scottish Arbitration Centre.

Embedding ADR in Scotland's Civil Justice System

A highly significant and far reaching conference on alternative dispute resolution is to be held in Edinburgh on Wednesday, 16 May, in Edinburgh.

Roseanna Cunningham, Minister for Community Safety and Community Affairs, is to open the event and international mediation expert John Lande, the Isidor Loeb Professor and former director of the LLM Program in Dispute Resolution at the University of Missouri School of Law, will share his international and practical experience of mediation.

The conference, organised by the Law Society of Scotland and Scottish Mediation Network, in collaboration with the Scottish Government, will allow speakers and delegates to explore the practicalities of embedding Alternative Dispute Resolution in the justice system within the context of the Scottish Government's plans to implement Lord Gill's Report on the Scottish Civil Courts Review and the Making Justice Work programme.

Speakers from the legal profession, the judiciary, and from business who have direct experience of mediation in action in a variety of contexts will provide a series of short, thought provoking presentations. After each presentation, delegates will have an opportunity to participate in a round table discussion, followed by a plenary debate on the issues raised.

David Preston, chair of the event and Law Society Council member, said: "In light of the Making Justice Work programme and the recent EU report from the DG (Internal Policies) on the "Quantification of the Cost of Not Using Mediation", it is essential that we consider how best ADR can be integrated into our justice system and what should be done to ensure that people can access the assistance they need to do this.

"We are aiming to provide a forum for an in depth and informed discussion of ADR. We will also consider how the most effective models can be embedded within the justice system to ensure that fair resolutions can be reached for those parties using ADR, where it can reduce costs and time spent in court, and as a result, boost public confidence in the justice system overall."

Scots Civil Justice Failure : 93 year old Pensioner faces £120,000 legal bill after court battle with Scottish Water, landowners & Council

Access to justice in Scotland’s court doesn't come cheap at the best of times, however in a startling case which may well be the tip of a gigantic iceberg, it has been reported that a ninety three year old pensioner in the Shetland Islands is facing a £120,000 bill after a court battle with Scottish Water, local landowners & the Shetland Island Council.

The Press & Journal report that Patricia Anderson, 93, is now hoping the Supreme Court in London may rule in her favour.

Pensioner loses five-year struggle with Island Council, Scottish Water and landowners

Shetland woman, 93, faces £120,000 bill after court battle

By Ross Davidson Published: 08/02/2011

An elderly woman is facing a £120,000 legal bill after a court battle against Shetland Islands Council and Scottish Water.

Patricia Anderson, 93, will have to pay for the expenses incurred by the two authorities and nearby landowners after her fight to protect her home failed.

Mrs Anderson, who lives at the bottom of a steep hill at Scalloway, fears her home is being destroyed by water from overflowing drains after 21 houses were built nearby.

The cause, nature and extent of the damage to the property has been disputed at legal hearings, but after Mrs Anderson’s last appeal failed she is now left with a £120,500 legal bill – which she claims is more than the value of her property.

Her last hope is Supreme Court judges in London will agree to hear her case. If her case is thrown out again, Mrs Anderson will have to pay the expenses of the council, Scottish Water and the landowners who built the homes above her property.

She has pursued the organ-isations through the courts for five years to find out who should pay for the damage to her home of over 35 years, Sea Chest at East Voe.

A small claims case at Lerwick Sheriff Court in 2006 found that the council was at fault under common law and there was an excess of surface water which could have been avoided by proper drainage.

But the court had no power over the council, forcing her to take the matter to a judicial review at the Court of Session. This was dismissed in 2008, and an appeal against that was rejected last year.

A family spokesman said Mrs Anderson is facing the legal bill because of failings in the Scottish justice system. “If we were in Europe, she would go to a tribunal in her local town, pay a small fee and an experienced tribunal chairman would give her an answer,” he said.

“This is a case where both organisations are blaming each other, but she should not have to go through a lengthy and costly litigation to get answers.”

The council said as proceedings were ongoing there was “little comment” it could make, but it had sent her a letter to tell her “some detailed aspects of her complaint not subject to the legal proceedings could be dealt with, should she identify them to us”. Scottish Water said the authority is “sensitive” to the issue, and it is not actively pursuing the money.

Scottish Government announces plans for implementing Lord Gill’s Civil Courts Review on Scots ‘Victorian’ civil justice system

The Scottish Government have finally announced their intentions with regards to implanting ‘some’ of the recommendations of the Civil Courts Review, the damning critique of Scotland’s ‘Victorian’ civil justice system carried out by the Lord Justice Clerk, Lord Gill. The Scottish Government say the proposals will take ‘some years’ to implement …

Readers can download the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

• Volume 1 Chapter 1 - 9 (Covers McKenzie Friends, procedures, advice etc, 2.99Mb)
  
• Volume 2 Chapter 10 - 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)
  
• Synopsis (215Kb)

A more critical & in-depth analysis of the Scottish Government’s proposals can be viewed HERE

The Scottish Government’s full response to Lord Gill’s Civil Courts Review can be viewed online here : Scottish Government Response to the Report and Recommendations of the Scottish Civil Courts Review or can be downloaded directly, here : Scottish Government Civil Courts Review response (pdf)

The Scottish Government release on their intentions to implement the Gill reforms :

Proposals for civil justice reform

Justice Secretary Kenny MacAskill today announced the Scottish Government's response to the Report of the Scottish Civil Courts Review, a wide-ranging review led by Lord Gill.

In the report, Lord Gill presented 206 recommendations for change, representing a comprehensive programme of reform - recommendations that are today broadly endorsed by the Scottish Government as necessary for ensuring Scotland has an efficient and effective civil justice system for the 21st century.

The Scottish Government agrees with Lord Gill's analysis of the problems currently facing Scotland's civil courts and believes radical reforms are justified.

Subject to public debate on the details of Lord Gill's proposals, and current constraints on public spending, the following recommendations, in particular, are accepted:

* Civil court business should be reallocated to more appropriate levels, with a far greater proportion of civil court business to be heard by the sheriff courts

* A specialised personal injury court should be established as part of Edinburgh Sheriff Court

* The creation of a new Sheriff Appeal Court

* The introduction of a new role of District Judge

* Adoption of an improved and more active approach to case management

* The introduction of designated specialist judges

Work is already underway on several of Lord Gill's recommendations, and the Scottish Government will continue to work with key stakeholders, including the Scottish Court Service, to take forward proposals for the legislation required to reform and ensure Scotland's civil justice system continues to provide an effective and efficient service for any individuals, families, communities and businesses.

Justice Secretary Kenny MacAskill said: "I thank Lord Gill and the members of his project board, Lord McEwan, Sheriff Principal James Taylor and Sheriff Mhairi Stephen, together with all the members of the broader policy group and others who also participated in the review, either as individuals or as representatives of organisations. Their collective contributions have provided a landmark in the development of Scottish civil justice."

"I am pleased to announce the Scottish Government's commitment to taking forward the majority of Lord Gill's recommendations, which have been broadly welcomed by Scotland's legal community and by the Parliament.

“I am keen to maintain a broad consensus as we set about implementing the required changes. This will enable progress to be sustained across different sessions of the Parliament, as will be necessary with the timescales involved in fundamental change. The Government is establishing a major change programme entitled Making Justice Work which will co-ordinate and oversee reforms across the system."

Law Society ‘urges’ Scottish Government to implement civil justice reforms after year long MacAskill 'no-show' on proposals

The Law Society of Scotland has today urged the Scottish Government to take action on the now over-a-year-old recommendations of the Civil Courts Review, carried out by the Lord Justice Clerk, Lord Gill. To-date, the Scottish Govenrment have published little by way of their intentions to implment Lord Gill's recommendations, and notably Justice Secretary Kenny MacAskill appears to have missed most of the Parliamentary debates on the subject, instead being lead by Communities Safety Minister, Fergus Ewing MSP.

While it has been noted Lord Gill made clear his recommendations were not to be “cherry-picked”, the Law Society appears to have done exactly that. A further in-depth investigation of the ‘cherry picking’ (along with a few apples – Ed) can be found HERE

The full release from the Law Society :

Society urges Scottish Government to implement civil justice reforms

The separation of civil and criminal cases, an increase in the threshold for the Court of Session and introduction of specialist sheriffs are just three of the recommendations made to reform the civil justice system by the Law Society of Scotland.

The Society's Civil Justice Committee submission to the Scottish Government today has backed many of Lord Gill's 2009 Civil Courts Review recommendations and believes the suggested reforms could potentially bring the greatest changes to Scotland's civil courts in over a century.

Kim Leslie, convener of the Society's Civil Justice Committee, said: "Lord Gill's report identifies a number of structural and other weaknesses currently affecting Scotland's civil courts, and makes recommendations designed to make radical improvements which, if implemented, will dramatically alter the delivery of civil justice in Scotland.

"We made submissions to the initial consultation as part of Lord Gill's review and welcomed publication of the report in September 2009. We are now keen to see implementation of some of the key recommendations to improve civil justice in Scotland.

"The scope of the review was huge, and the Society's Civil Justice Committee has not commented on every recommendation in the review, however one of our own key recommendations would be to separate civil and criminal business within the Sheriff Court because many of the current problems arise from the huge amount of judicial time which is spent dealing with summary cases.

"We also support the view that there should be specialisation within the judiciary, in particular in administrative, environmental and planning law as well as family, commercial and personal injury cases.

"Such specialisation could be introduced without the need for primary legislation and at no great cost to the public purse - there has already been a successful pilot in Glasgow Sheriff Court of such a system and think this would be beneficial if rolled out across Scotland. The committee is also keen that there should be the option of using a commercial court in each Sheriffdom."

The Society's Civil Justice Committee has also backed increasing the threshold for civil cases in the Court of Session, Scotland's highest civil court. Currently the threshold for cases to be heard in a Sheriff Court is £5,000 and the committee believes this should be raised to at least between £20,000 and £50,000 to allow business to be directed to the appropriate level competent to deal with it.

Ms Leslie said: "Any increase in the threshold for cases to go before the Sheriff Court must coincide with the introduction of specialist sheriffs. We would also endorse the creation of a third tier, dealing with appropriate cases to alleviate pressure on the civil justice system.

"We are in broad agreement with many of the recommendations made in the Civil Justice Review, although we have also taken the opportunity to outline reservations on some of Lord Gill's recommendations, such as a national Sheriff Appeal Court for civil appeals. We would now urge the Scottish Government to implement some of the recommended reforms including the establishment of a Civil Justice Council for Scotland, which would bring in the cost and funding of litigation as part of its remit.

"We are keen to see the introduction of workable improvements to Scotland's civil justice system for all those who use it and work within it and look forward to working with government in bringing forward reform."

The full Law Society of Scotland Civil Justice Committee report can be read at: Law Society Civil Courts response or directly downloaded HERE

Mediation to the fore but costs run as high as using the lawyers

Mediation perhaps not all its cracked up to be .. but a little spin can put the edge on things of course !

The Scotsman reports :

Mediation grows as firms see the benefit of finding common ground

IN A mediation a few months back, those involved – some lay people, a growing business and a professional adviser – revealed they had previously spent more than three years in dispute and incurred legal and other costs running well into six figures, an amount that may have significantly outweighed what was at issue between them.

They were deeply frustrated. "If only we could have talked like this two years ago," they said. Fortunately, in just two days of talking, they worked out a solution.

Of course, this is anecdotal evidence, but such tales are not unfamiliar as there is a growing recognition of the benefits of mediation.

Earlier this year, two of England's most senior judges expressed clear views about the value of mediation in civil disputes. There is nothing jurisdictionally specific about the use of mediation as a complement to the court process.

Thus, with Lord Gill's review of the civil court system now well under way in Scotland, the English judges' observations are of relevance and importance to us.

In a speech at the end of March, the Lord Chief Justice, Lord Phillips, said: "Mediation offers many attractions in addition to that of avoiding the cost and trauma of litigation … It is a private and confidential way of resolving a dispute. It is informal. It is voluntary. It is a process that those involved can understand."

He emphasised that parties are in control of what is happening to them, that they can preserve, or restore, good relationships with the other party to the dispute – and that they can come to feel they are partners in a common endeavour rather than antagonists. And, he observed, resolution via mediation can involve a much wider range of remedies than the court can offer.

He commented that litigation has a cost, not only for the litigants but also for society, because judicial resources are limited and their cost is usually borne – at least in part – by the state. He suggested that parties should be encouraged to attempt mediation before litigation, and there should be built into the litigation process a stage at which the court can require them to attempt mediation.

His speech left those who heard it in no doubt about his feelings on mediation – he concluded: "It is madness to incur the considerable expense of litigation – in England usually disproportionate to the amount at stake – without making a determined attempt to reach an amicable settlement."

Nobody has suggested that mediation should be compulsory – or that it would work – in every case, but the cost of litigation for litigants and the public purse has prompted proposals that there should be a mechanism for ensuring that parties try alternatives before litigating.

It is has been suggested that judges should have power to seek to persuade parties into mediation, perhaps with sanctions if they unreasonably refuse to do so. This power is already exercised in England. We await new rules of court in Scotland.

As Sir Anthony Clarke, the Master of the Rolls, speaking at the recent Second Civil Mediation Council conference pointed out: "It is of course a cliché that you can take a horse to water but whether it drinks is another thing entirely. But what can perhaps be said is that a horse, even a very obstinate horse, is more likely to drink if taken to water. We should be doing more to encourage, and perhaps direct, the horse to go to the trough. The more horses approach the trough, the more will drink from it."

Of relevance is a new EU directive, adopted in April, on mediation in civil and commercial matters, which is applicable to cross-border disputes.

The directive gives judges in the European Community – at any stage of the process – the right to suggest the parties attend an information meeting on mediation and, if the judge deems it appropriate, to invite the parties to have recourse to mediation.

The stated purpose of the directive is to facilitate access to dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a sound relationship between mediation and judicial proceedings.

The need for greater education for all concerned was taken up by the Master of the Rolls. "Experience … shows, even now, that far too many people know far too little about mediation," he said. "Alternative dispute resolution in general and mediation in particular, where it is the appropriate ADR mechanism, must become an integral part of our litigation culture."

He pointed out that this would require the education of lawyers, litigants and judges, with the onus on the legal professionals to ensure that litigants appreciate mediation's many benefits – including its informality, its confidentiality, and the possibility it holds of enabling parties to reach a consensual resolution more quickly and at lower cost than in the zero-sum game of litigation.

He also cautioned that it was important to highlight the drawbacks. Although these were few, they may include the fact that, for example, mediation does not produce a court judgment setting out the individual litigant's rights.

The First Minister recently gave his support to mediation in a letter to delegates at the European Mediation Conference in Belfast. He said: "The Scottish Government is a strong supporter of the increased use of alternative forms of dispute resolution, including mediation, and is currently providing funding in a number of areas … raising public awareness of the existence and merits of mediation."

It is said that in Scotland we have been slower to appreciate the benefits of mediation in civil and commercial cases, but recent mediations in Scotland have involved participants from Australia, Denmark, the United States, Turkey and England, just to name a few. Others have taken place in or involved people and businesses from all points across Scotland. Hundreds of lawyers have been involved.

The opportunity now exists to enhance Scotland's reputation as a centre where multi-national and local disputes can be quickly resolved. If we do not, there is a danger of losing more business at a time when retaining and generating more of it is so important to our economy.

The Master of the Rolls' comments about the English judiciary surely apply to decision-makers in Scotland: "What we certainly cannot do is sit back and do nothing. Those days are now long gone."

• John Sturrock is a mediator and founder and principal of Core Solutions Group.

Scottish Consumer Council : Civil justice system needs review & improvement.

Civil justice in Scotland is a mess, and has been for decades.

With restrictions on access to justice, and areas of civil law limited in reform by professional interests, the Scottish Consumer Council has again, called for improvements & reforms to be made.

The Scotsman reports :

Consumer Council's ideas for civil justice

MARTYN EVANS

THE civil justice system is a vital public service that underpins our daily lives. We all need proportionate ways to have our grievances and disputes settled. Consumers and citizens deserve to have effective access to justice and to be able to enforce their rights. As a consumer rights organisation, the Scottish Consumer Council (CSS) has a significant interest in civil justice and fair commercial practices.

Despite the importance of civil justice to both consumers and society as a whole, it had not had the political and policy attention it deserved. Then, in 2004, the SCC established a Civil Justice Advisory Group representing key stakeholder interests, chaired by Lord Coulsfield, to try to obtain a consensus on the need for a civil justice review. The final report, The Case for a Review of Civil Justice, was published in November 2005.

The Scottish Executive responded very positively with Modern Laws for Modern Scotland, an eloquently written manifesto for change based on the findings of the SCC Advisory Group. The then justice minister asked Lord Gill to review the court related issues identified by the group's report.

We have high hopes for the Gill review and are looking forward to the publication of a consultation paper from Lord Gill setting out his first thoughts about reform.

While the review has been established specifically to look at the civil courts, we believe it must do so within the context of the wider civil justice system. The review must be underpinned by the central principle set out in the report of the Civil Justice Advisory Group: the courts should be viewed as a last, rather than a first resort.

If people are to exercise their legal rights, they need to know what those rights are, and how the legal system works. We would like to see an integrated strategy for public legal education in Scotland, building on work done in England and Wales, Canada and elsewhere.

It is important that adequate and appropriate advice services are available to diagnose the problem, deal with it or refer it on to the most appropriate dispute resolution service.

People tend to associate the courts with criminal matters. While it is likely this is partly due to the portrayal of the courts in the media, the lack of any physical separation between the two in our courts can only serve to reinforce this. We would like to see a modern system of civil justice plan for this separation.

Court processes and procedures are complex and often very difficult for non-lawyers, even well educated and articulate individuals, to follow. At the very least, there is a need for a comprehensive overhaul of all court procedures, to make them easier to use and simpler to understand.

I am astonished at the commitment of those on the influential rules councils to draft complex procedures as well as continue their day jobs, but a modern system of civil justice can surely invest the resources to allow the drafting to be undertaken more quickly and with less onerous demands on a few committed people.

While simplified forms would greatly improve access to justice, and while we very much welcome the forthcoming increase in the jurisdiction limits, much more radical reform is required. We would like to see a new system where certain types of claim are dealt with in a separate and less formal forum, preferably out-with the courts. Some thought might also be given to modernising dress codes for lawyers and judges in civil proceedings, as this can be intimidating and is unnecessary.

I would commend the recent report from the English Civil Justice Council on paying for legal representation. It clearly sets out a wide range of options and discusses their merits. It is well worth a read for anyone who has any interest in improving access to justice.

While the debate about reform of the civil courts has focused on providing mechanisms for individual redress, we believe there should be much greater emphasis on collective forms of redress.

The legal system in Scotland, unlike that in England and Wales, the United States and other jurisdictions, does not provide for a procedure for class actions. Why not?

Finally, a key issue identified by the Civil Justice Advisory Group is that of enforcement, particularly for individual pursuers involved in cases against commercial organisations.

We think the review should look into the possibility of a role for the state in assisting such individuals to enforce their decree.

• Martyn Evans is director of the Scottish Consumer Council. He will speak at today's civil justice conference in Edinburgh.