Alternative Dispute Resolution
Good morning. The first item of business is a debate on motion S3M-738, in the name of Kenny MacAskill, on alternative dispute resolution. We have a little time in hand.
I appreciate the efforts of all those who have come to the chamber this morning to participate in the debate. The topic may not be the most exciting—it does not divide parties or the chamber on the basis of ideology—but it is nonetheless an important aspect of our justice system for a small, but important, section of our society, so the debate will be greatly welcomed. I am grateful to all those members present—both those who volunteered to come to the chamber today, bright eyed and bushy tailed, or who were volunteered—to debate this important aspect of the law of Scotland.
I welcome the opportunity to introduce the debate on the use of alternative dispute resolution procedures, which are less formal, value-for-money ways in which disputes between citizens can be resolved. Before I set out how the Government sees the interaction between ADR and the civil justice system, I will set out our priorities in relation to the operation of the civil courts and administrative justice. In so doing, I recognise that our civil courts have served the people of Scotland well over centuries. However, in an increasingly complex and diverse world—in the global economy and in our knowledge economy—we need to examine more cost-effective, time-effective and less stressful ways in which to resolve disputes.
We need to ask ourselves whether the procedures and processes are as clear and understandable as they can be and whether court-based resolution is appropriate for the range of disputes that are currently decided there. That is particularly true for low-value cases—which, after all, are the vast majority of cases that appear before the courts—where no legal principle is at stake and where a pragmatic solution is required. I concede that major principles are involved in some minor cases. Any system needs to be flexible enough to recognise that, if a requirement arises to move the case into a different ambit, that should be done. In the main, however, where matters are relatively low cost and straightforward, we should seek to deal with them as pragmatically and simply as possible.
That is true across all ranges of dispute. A key priority for the Government is to develop and enhance a vibrant Scottish economy in order to generate wealth and prosperity in Scotland. We recognise that we are a small country, but we want to place Scotland in the economic foreground of Europe, North America and beyond. Scotland should be an easy place to do business. The law and courts need to back that up to make Scotland the jurisdiction of choice for resolution of disputes, and not, sadly—as is the case at present—a place where people prefer, despite cost and other factors, to pursue matters elsewhere.
We have much to be proud of in the entrepreneurial spirit of the Scots and the success on the international stage of institutions such as the Royal Bank of Scotland, which has shown that we can compete internationally and globally with the best. However, in order to complement and support those levels of international success, our domestic courts and other dispute resolution structures need to be modern, quick and efficient and serve the needs of their users.
In April last year, I participated in the civil justice reform debate in the Parliament, at which time I urged the then Executive to press on with a radical re-examination of the civil court system. My amendment, that the civil justice system
"must also be accessible and affordable",
was accepted by the then Executive and around the chamber. I also welcomed the announcement in February by my predecessor, Cathy Jamieson, asking Lord Gill to carry out a review of the structure and jurisdiction of the civil courts in Scotland. I look forward to receiving his recommendations when he reports in May 2009. It may be that some structures will change; or the legislation may be found to be appropriate. I give the chamber the assurance that the values and ethos that Scots law has always stood by and for will remain the same, but will be made fit and appropriate for the 21st century in which we find ourselves.
Currently, I am involved in discussions with the legal profession about the introduction of alternative business structures, which will change the way in which we offer legal services in Scotland. The issue will be debated in the chamber on 15 November. I look forward to the contributions to that debate—not only those from the Law Society of Scotland that will arrive in my e-mail inbox and doubtless in the inboxes of other members, too—but those from members around the chamber.
I further welcome the serious consideration that the administrative justice steering group, under the chairmanship of Lord Philip, is giving to the establishment of a way forward for the provision of ombudsman functions and a modern, efficient, effective and responsive tribunal service in devolved areas. Sometimes, we can forget that our constituents are more likely to interface with and come before a tribunal than they are to be before a court of law. The courts not only take the publicity, but they are—understandably—at the forefront of our minds. However, in day-to-day matters, people are more likely to interact with a tribunal than either the High Court or a sheriff court.
All those major initiatives comprise a major challenge to those of us who are deeply committed to the highest quality of dispute resolution system. Of course, structures are not enough in themselves; we all need to be willing to embrace new ideas and new ways in which civil justice can be delivered. My aspiration is to make the use of the formal court system the remedy of last rather than first resort.
That said, the situation is not necessarily the same in all major arbitrations. My experience of mediation as an agent when I practised law is that it is a much better system than any sheriff could pronounce in matters such as access to children, or contact, as it is now called. It is much better for both parties to reach and sign up to an agreement than for the court to force a decision on them that neither party welcomes.
A central part of ensuring the existence of an effective court system is the encouragement of an environment where alternatives to court are made available to meet the needs of different users and circumstances. Over time, a wide range of different dispute management processes have developed. This debate gives the Parliament an opportunity to explore and discuss that range of processes, and to debate how we can enhance and develop their role.
I was taken by the cabinet secretary's comment on the court as a place of last resort. There is a lot of merit in what he said. However, will he commit today to the Scottish Government resolving all its disputes by ADR and using the court as the place of last resort?
I cannot give that formal commitment, as each and every matter is different. Frankly, in some cases, the Government will have to go to court because the matter is urgent and we have to take immediate steps to defend the interests of the citizen or whatever. That is why we have measures such as interdicts and why we have at times to arrest or inhibit on the dependence. Sometimes, there have to be ways in which to take immediate action to defend. The Government would sign up to the ethos that it is much better to discuss and negotiate. That said, there are instances where it is necessary to protect the interests, not simply of the Government or the state, but the citizens we represent. In those instances, as I said, we have to reserve the right to litigate, and to litigate urgently and immediately.
Each process has its place, and none is of itself more important than another. As an Administration, we recognise the value of methods such as arbitration, adjudication, mediation, early neutral evaluation, reference to a person of skill, and assisted negotiation. I will focus on the first of those by setting out the Administration's strategy on arbitration reform.
Unfortunately, the current law on arbitration in Scotland is very much in need of modernising reform. In at least one aspect, the law dates from an act of 1695, which was made by the first Scottish Parliament, although I do not denigrate that, in and of its own. Members who have read Arthur Herman's book "How the Scots Invented the Modern World" will know that the noted historian indicated that the single most important act that any Scottish Parliament has passed is an act from about that time—I think that it was 1696—on free public education. The act was driven by the desire of the previous Scottish Parliament to make our people literate so that they could understand directly the word of God. The act had huge benefits, not only for the enlightenment but for our nation. It benefited our people not only at home, but, as Mr Herman pointed out, when we went abroad. We landed on foreign shores literate and numerate. We could read the road signs in places where, in many instances, expatriate Scots communities are still well entrenched.
I merely ask, what went wrong?
I say to my friend around the other side of the chamber that it is as we look at the glass in Scotland: is it half empty or is it half full? He is one of those who sees it as half empty; I prefer to see it as half full. We have our problems, but we are addressing them.
The unsatisfactory state of the law here currently makes Scotland an unattractive place in which to arbitrate, but as world trade continues to expand, there will be an increasing demand for high-quality arbitration services as the preferred method to resolve cross-border commercial disputes.
In order to support and develop domestic arbitration and to attract international arbitration business to Scotland, we are developing a three-track strategy for reform, in partnership with representatives of arbitrators and users of the arbitration process. The approach is, first, to prepare an arbitration bill to modernise and codify the law and bring it into line with up-to-date arbitral practices in other jurisdictions. We will issue a bill for consultation among interested parties in the spring of next year, and I look forward to discussing and debating it with members on all sides. If we can assist prior to that with advice or information, members should feel free to contact me or my department.
What is the cabinet secretary's view on the current Scottish arbitration code?
As I was saying, we have to update it. We are in a global environment, and the nature of our economy and society has moved on. We need to build on our strengths and the fundamentals that are still appropriate, while ensuring that we have a system that is fit for purpose. Having spoken to a variety of interests, it is clear to me that, although we should have an advantage—over London in particular—in terms of costs and time, we do not, and many people still choose to go to London despite the increased costs and a variety of other factors. We should be able to do the work here.
Secondly, we want to develop a dispute resolution centre, to which international arbitration as well as domestic business might be attracted. Thirdly, we wish to encourage representative bodies to enhance their arrangements for quality assurance among arbitrators, through accreditation, appraisal and training.
In our manifesto, we undertook to work with Scotland's legal community to develop plans to create a Scottish international arbitration centre. We envisage a centre that will also have a role in other forms of dispute resolution. Arbitration is of course only one form of conflict management resolution. More broadly, ADR is a catch-all title, which takes in methods of resolving disputes that do not involve litigation in courts or tribunals. They all have their place, and they can enable people to resolve their disputes more quickly and effectively than by going to court.
There have been a range of Government-led initiatives to develop ADR in Scotland. Despite that, the use and recognition of ADR methods still seems to be outside the norm here. Are we too reliant on traditional adversarial processes and laws? England and Wales have gone further in the use and acceptance of mediation and arbitration, especially in connection with the court system. We are happy to learn from that jurisdiction and other jurisdictions around the world.
In Scotland, the Sheriff Court Rules Council completed a consultation exercise in 2006 on the use of mediation and other forms of ADR, and plans to adopt new rules to encourage the use of mediation or other forms of dispute resolution. Much work is on-going. We want to encourage that, and we want there to be a wider recognition of the place of all appropriate forms of dispute resolution.
Will the Scottish Government take forward the pilot scheme on the role of mediation in the reformed planning system? My colleague Patrick Harvie asked a question about that in the previous session, and he was informed that it would be finished before the end of 2007.
I am not in a position to answer that at present, but I will inquire. If possible, my colleague the Minister for Community Safety will answer that during his summing-up speech. If not, I will undertake to write to the member and give the relevant details.
We see the potential to enhance Scotland's place in the world and its reputation as a place to do business. Modernising our institutions forms part of that. Scottish businesses and legal service providers can be key players in serving the global market, to the benefit of us all. The Government sees no reason why legal services, aside from satisfying the needs of our communities and our society here in Scotland, should not be able to access a wider market, which could enhance our economy, boost job opportunities and provide services in the global society in which we live. Whether it involves dealing with matters on a United Kingdom, European or global basis, our financial services sector is taking on the world, as we can see with the RBS and HBOS. In accountancy services, we provide locally and compete on a UK and international basis.
Thinking about successful Scots, I am always reminded of one who remains a global brand: Arthur Young, whose name lives on in Ernst & Young. Mr Young was a double graduate at the University of Glasgow before he departed for Illinois, and the rest, as they say, is history. We aspire to serve our communities well, as has been the case down the centuries, but we also wish to add to what has been done and to compete internationally.
I urge the Parliament to support our motion, and I am grateful that there are no amendments, which is indicative of our recognition that the subject is not a matter of dispute among parties, nor is it one where there are ideological differences. I am grateful in advance for members' contributions. I hope that together we can address a matter that, although it is a relatively unspectacular subject for the media, as I see from the absences in the press gallery, is in fact of significance and importance in making Scotland a better place. I look forward to hearing members' contributions.
I move,
That the Parliament recognises the need to develop a broad range of appropriate dispute resolution schemes, as alternatives to the formal court system, which can offer more flexibility, quicker resolution, less stress and reduced expense for citizens.
As I indicated at the beginning, I can be quite flexible with time this morning.
I feel much more relaxed now that the cabinet secretary has been the first to say that, at face value, this might not be our most exciting debate to date. However, I can assure the cabinet secretary that Labour has a full team ready. The Government has said that it is listening, so we will be making many important points this morning. I compliment the cabinet secretary on filling 16 minutes with his contribution; we are certainly raring to go.
Alternative dispute resolution—ADR for short—is a long phrase, giving us a more modern term for mediation. I am advised by those in the field that, in fact, "ADR" is very last session. That is a shame, because it is such a catchy title. What exactly is it all about? Many members will have felt enlightened by today's choice of debate, but it is a subject that we have probably not discussed enough. A deeper understanding of ADR reveals that it is a real issue and that ADR policies have the potential to make a difference, if they are applied and supported by Government, particularly for those people who have felt closed off from our very expensive civil justice system.
At the highest level, ADR is about solving disputes and differences between commercial companies across national borders. Adopting a legal framework setting out the rules for the settling of such disputes is important. As the cabinet secretary has said, our outdated arbitration laws do not make Scotland as attractive a forum as it might be for international companies to come here and settle their disputes.
When I first read about forum shopping, I thought that it sounded like the thing for me—shopping for the nicest hotels and bars in a tourist-friendly city. Forum shopping is not about that at all, of course; it is about finding the best jurisdiction with the most appropriate framework. It is important to modernise Scots law in that regard. I note that there is nothing in the legislative programme in that area, and I would be interested to hear how the Government is proposing to go about modernising Scotland's ancient laws in that regard.
At other levels, mediation and ADR are about resolving disputes with another party, at whatever level. The Scottish Mediation Network, a group of practitioners, promotes mediation in all forms, and it argues that it is very much underused. I agree with that view. If we are to incorporate mediation into our legal system, it must be planned for and supported by Government.
I hope that there are plans beyond those on forum-shopping arbitration, because it is more important to find a place in our justice system for those who are least able to use it at present. It is about social justice as much as anything and I believe that results can be achieved if mediation is incorporated. It offers parties a less expensive and less formal setting than court in which to resolve disputes and ensures that they get a result.
I hope that the civil justice review, which Lord Gill is conducting, will address some of those issues. I sincerely hope that it will be not just a review of the courts but a real examination of how to provide better and fairer access to justice. I will be really disappointed if the review does not cover ADR, because, for many, justice is unaffordable. I have the greatest admiration for our civil practitioners and those who run our civil courts, but some of the costs involved mean that civil justice is completely out of reach. I am opposed to ordinary citizens paying more towards the cost of going to court. A key way of ensuring more and cheaper access to justice is to use mediation more often.
Family law is an area in which we could use ADR or mediation more. We need a radical reform of the system for resolving family disputes. We had a lengthy debate in the chamber not so long ago about the failings in the current system and the fact that the costs for many parties are getting completely out of control. Many cases in which there are disputes between parents about child contact could be filtered out of our court system. There is a case for saying that, in the first instance, families should be more formally encouraged to attend mediation to focus on the welfare of the child involved.
Although I have not practised for eight years, I was a family lawyer and I understand that sheriffs may direct parties to undergo mediation to resolve difficulties with child contact before they come to court.
The member is quite right. However, I want to develop the point that the system should more forcefully discourage parties from coming to court. Some members will remember that my colleague Sylvia Jackson mentioned a child contact case in which a father, whom the court had granted contact with the child, had spent in excess of £50,000 and mortgaged his home to try to get through the civil justice system. That is not acceptable in this day and age—it is not accessible or fair justice. In such cases—particularly where the court has granted contact—we should give sheriffs more powers to say that parties should use mediation as a less expensive way of resolving the dispute. Mediation should be encouraged more formally.
One of the achievements of the Parliament in the previous session was that the discussion led to at least three pilots on mediation being run. They are not strictly formal mediation forums, but they involve an officer of the court whose job it is to encourage parties to enter into constructive mediation, to try to prevent many cases from coming to court. It would be helpful to hear about the outcome of those pilots soon.
In the previous session of Parliament, following the passage of the Family Law (Scotland) Bill, Mary Mulligan reported to the Justice 1 Committee on the availability and funding of mediation, which was found to be lacking in many areas. Christine Grahame is quite right to point out that sheriffs send parties to use such services. The Justice 1 Committee was pleased that, finally, at the end of the process, ministers announced additional funding of £300,000 for mediation organisations to bid for. Such organisations need to be supported financially. I commend the work of Relate Scotland, Family Mediation Scotland, Stepfamily Scotland and Scottish Marriage Care, which provide a vital service for families, help save relationships, help couples work out their differences and help families come to agreements about contact.
The European Commission has been discussing alternative dispute resolution for several years. In fact, the Justice 1 Committee gave evidence to the Commission by videoconference. A European directive on ADR is encouraging all member states to use alternative dispute resolution models. That is a good concept, which should be encouraged. We would benefit from exchanging information with other countries on models of dispute resolution and arbitration. Members will be familiar with the European Commission's approach to these matters. Although I agree that the Commission should encourage member states to exchange information on their models, I also believe that it is for member states to choose the model that is appropriate for them.
There are still no formal settings for ADR for Scottish citizens in mainstream law; ADR is not yet part of our formal system in the way that it might be. We have an opportunity to step things up a gear so that ordinary people can benefit. I hope that we can rely on the civil justice review to ensure that ordinary people feel the benefit of it.
It is all about professionally trained people using their skills to bring parties together to resolve their differences. Resolving disputes without going to court provides cheaper and perhaps easier justice. However, ADR operates on many different levels, from disputes in employment to disputes among neighbours, community disputes and disputes in family law—the list is endless.
Employment law is one of the most notable areas in which mediation and arbitration are used. Although employment law is not a matter for this Parliament, I am aware that there are on-going discussions about how to modernise the employment law framework and use arbitration more often.
Labour is proud of the work that it did in coalition to reform the criminal justice system. We were clear that we wanted to spend a lot of our parliamentary time reforming the criminal justice system, for which we do not apologise. We had begun to focus on the civil justice system. Cathy Jamieson, the former Minister for Justice, began the civil justice review. I hope that the Parliament will spend some of its time poring over the recommendations of the review when we get a chance to see them.
Civil justice is expensive and arbitration reform can make a real difference. I support what has been said this morning: there is a need to make Scotland a more attractive place for companies to come to settle their disputes. We want companies to have confidence that our legal framework will allow them to resolve their disputes. I agree that that is an economic issue, so I support what has been said about it. However, I hope that in promoting Scotland as a place for companies to resolve disputes, the Scottish National Party Government will focus not only on the trade issue, but the social justice aspects of mediation and the modernisation of our civil justice system, which are as important.
I do not know whether I have gone over my allotted time, Presiding Officer.
No.
I was told that I had 11 minutes. I thought that I did quite well in speaking for 11 and a half minutes—without interventions. I have enjoyed my contribution. I know that many Labour members will talk in more detail about some of the areas in which we can expand the use of mediation. I am sure that the debate will be productive.
Thank you. In this debate, at this stage, there is no such thing as going over time. I call Bill Aitken. Mr Aitken, you have quite a long time.
I congratulate the two previous speakers not only on their eloquence but on their verbosity, which was welcome.
It is with a feeling of irony that I stand to speak on this subject. For members such as George Foulkes and me, Thursday mornings are about disputes, but we are being asked to spend two and a half hours discussing a scheme in which disputes can be resolved in a less contentious manner—how terribly boring. However, I am sure that there is a way forward. We could not possibly disagree with anything that has been said so far. Genuine possibilities of advancing the case for alternative dispute resolution could benefit not only the people of Scotland but Scotland in wider terms.
First, I will examine what solicitors call low-value cases. There is no doubt that the legal fees and expenses of such cases are completely incommensurate with their value. It is only common sense that we should consider whether we can resolve such cases less expensively and with less recourse to the courts. For many people, appearing in court—even on a civil matter—is fairly stressful. The much more informal manner of arbitration would relieve that stress significantly and improve social justice, to which Pauline McNeill properly referred.
For many years—in fact, for generations—systems for achieving arbitration without going to court have existed. In the financial services industry, arbiters can be appointed in some situations to handle insurance claims, although they deal with quantum rather than liability. In the construction industry, arbitration is of course used extensively, sometimes in very high-value cases. That is good. If we are thinking of expanding our system, we must examine how such systems operate and consider what could be picked out of them and used in future legislation. In low-value cases, travel companies and travel agents associations operate arbitration processes that seem to work fairly well. We should also consider that.
As with everything else, problems can arise from an arbitration process. I think that we all agree that when an important legal principle is involved and a precedent will be set, a court should decide the matter. Otherwise, we will have all sorts of complications further down the road. We must consider whether it is advisable—in my view, it is not—to allow arbitration judgments to form the basis of precedent for future cases. It is clear that arbitration cases should be determined on their individual merits. Of course, generalities apply, but allowing arbitration judgments to set precedents would be a dangerous course.
What about enforceability? Those who sign up for arbitration are also required to sign up to adhering to its outcome. I accept that the information might not be available to the Minister for Community Safety, but I would be interested to learn whether a significant history exists of people not accepting judgments and not playing the game, so that when a financial ruling is made, the money is not forthcoming. If a significant difficulty exists, something will have to be done to make such judgments enforceable. If people have signed up for arbitration, they must accept the arbiter's judgment and there should be no question of their failing to pay when an award has been made. Otherwise, the case for justice would be largely lost.
There is a strong business case for making Scotland an arbitration centre. That was one of the few proposals in the Scottish National Party's manifesto with which I agreed; it remains to be seen whether, unlike many other aspects of that manifesto, it will be implemented. The cabinet secretary mentioned the proposal and he was right to say that Scotland has a good reputation, particularly in two areas. We have a financial services industry to be proud of, which is respected all over the world, not just because of Mr Young's undoubted achievements but because many of our major companies have performed well, effectively and with absolute integrity. We also have a legal system to be proud of. It has withstood the attacks in the past eight years of the previous Executive, which seemed hellbent on interfering with something that works well.
Does the member share my delight that, after many years of the union, the Scottish legal system remains so distinct?
Well, as Christine Grahame knows, I am a strong supporter of the union. The Scottish legal system, which is very distinct, has contributed to the union's strength over the years. We have a legal system to be proud of. It is internationally recognised that our legal system is perhaps the best in the world.
Given that, it is logical that Scotland could be an attractive venue for arbitration in the years ahead—the cabinet secretary is right about that. In technical and practical terms, people would be keener to settle their disputes in Scotland, where settlements are basically sensible and realistic, than to resort to courts on the other side of the pond, where the deep-pocket liability principle arises and where defenders would not have much confidence. There is a strong business case for the proposition, which could be sold internationally. That would not only have immediate financial spin-offs for our legal and financial services industries but raise Scotland's profile, which—believe it or not, cabinet secretary—we are all anxious to do, without appointing grandiose civil servants to operate from the Washington embassy. We agree with the arbitration centre proposal.
The discussion has some way to go. We will watch what is proposed with considerable interest. I am sure that the majority view—in fact, the unanimous view—of members is that we should consider the matter, support the basic principle and see what arises in the years ahead. The Conservatives will not divide the Parliament on the motion at decision time.
I am sure that members will have noted that, when it comes to verbosity, Mr Aitken is a match for anybody.
I am known to talk at length, so perhaps this is just the debate for me. I welcome what I have no doubt will be pretty much a consensual debate, although the Government never quite gets off the hook. Last week, the Conservatives attacked the Government for not rushing to court after the Macphail judgment whereas, this week, Gavin Brown gently criticises the Government for going to court too much.
I welcome the debate, because alternative dispute resolution can have positive impacts on the country and practical benefits for those who are involved in the process. Developing a broad range of schemes is undoubtedly a positive step towards more flexible and effective conflict resolution in Scotland.
In our work as MSPs, we come into contact with several ADR approaches—from neighbour dispute mediation, which is a thorny issue, to the various ombudsman services and the workings of tribunals. Very often, when constituents complain about a public service such as the police or the national health service, the first step is mediation with that service.
The issue has been live in recent years and the European Commission has done considerable work on it. As Pauline McNeill said, the Justice 1 Committee gave evidence to the Commission on the subject. In general, we should all look to do more to ensure that the Commission takes on board the Scottish legal and parliamentary perspectives. The Scottish Court Service has also done relevant work.
The volume of disputes that are brought before the courts, the time that is taken to resolve them and—most important—the cost of reaching resolution are all increasing. Together, those increases restrict individuals' access to justice.
The issues of fairness and what works are at the heart of the matter. There is also the on-going issue of access to legal aid. I am dealing as a constituency member with a particularly harrowing case that involves the death of children. In attempting to get civil legal aid for my constituent, I was told that only three law firms in Edinburgh currently take on civil legal aid cases. Luckily for her and me, we will be able to meet one of those firms to discuss the case, but that hardly gives a glowing view of access to modern justice in Scotland. ADR can help to reverse such trends by providing more ways for more people to find more effective resolutions to their disputes.
It is clear that ADR schemes cannot be a straight substitute for legal advice or decisions by a court, as in some cases such schemes would be highly inappropriate, or even unsafe. A point of principle or legal precedent may be at stake and a court ruling may be required. However, in many cases alternatives to the courts can be of great benefit to people who are involved in disputes, which can be traumatic. ADR schemes can be faster at achieving agreements and more cost effective than court settlements, and can often leave participants more satisfied with the outcome because they have been more directly involved in the negotiations and discussions. ADR schemes are potentially more relaxed processes and they are confidential. I will talk later about some of the new tribunals that have been set up, which are not relaxed in themselves—they, too, result in stressful situations for people.
I welcome the cabinet secretary's comments on arbitration. Modernising our arbitration system for a modern commercial world is certainly needed. It makes one proud that the Scots of previous generations, armed with their education, wandered the globe arbitrating, but that is perhaps a slightly different view of the British empire. However, we welcome the announcement on the introduction of an arbitration bill next year.
Mediation is a form of alternative dispute resolution that aims to help people or organisations that are in dispute to reach an agreement. It offers a chance for reconciliation and enables those who are involved to reach agreements above and beyond mere financial settlements or black-and-white decisions. Mediation schemes can be used to handle a wide variety of disputes, including commercial, consumer, workplace, community, housing, divorce and family disputes. I have used family mediation and certainly recommend it as a good way to achieve a child-centred and family-centred solution at a time of separation or divorce. Family mediation will not work for everyone, but it worked for my family. It has stood the test of time for us in many ways, because my ex-husband and I entered into the process in good faith. Such mediation could—and does—work for many couples.
Pauline McNeill talked about a case that Sylvia Jackson mentioned, which I remember well, as I am sure colleagues do too. One of the key things about family mediation is that it must be a journey of the willing that both parties enter into. Most of the time, both parties enter into family mediation thinking centrally about what is best for their children. In the light of the case that Pauline McNeill mentioned and others that the Justice 1 Committee was made aware of during the passage of the Family Law (Scotland) Bill, there is not—unfortunately—always a journey of the willing in family law disputes.
Mediation also has more wide-reaching benefits. It creates savings for the justice system and in legal aid budgets, and it frees up the courts for other types of cases in which real questions of law are at stake. Those benefits represent just some of the reasons why I welcome the Scottish Government's show of support for the increased use of ADR schemes. The Government has pledged to consider changes to arrangements to allow swifter decision making and reforms to the system in order to let our sheriffs and judges focus on more serious cases, but the cabinet secretary knows that such developments cannot be effected through good will alone. The Government must make real commitments and provide tangible resources to achieve its aim.
Bill Aitken accused the previous Administration of being "hellbent" on changing the legal system. I am guilty as charged, given the relative success of the Bonomy reforms and the attendant improvements for victims and witnesses, including police witnesses, who are now on our streets instead of in our courts.
We welcome the work on civil justice that Lord Gill is currently undertaking, which the previous Executive began. I also welcome the work on reviewing sentencing that the new Government has done so far. We believe that there are other options, including community disposals, which could involve mediation and could directly involve communities and victims in decision making.
I hope that the Government will follow up on the commitment that the cabinet secretary made to me at the Justice Committee to monitor the impact of the changes relating to small claims and personal injury cases, given the concern among personal injury lawyers that the changes will lead to fewer voluntary agreements and more cases coming to court. That said, we welcome the changes relating to small claims, which are a key access-to-justice issue.
The Scottish Liberal Democrats recognise the need for the more extensive use of alternative methods of resolving disputes, but we also recognise the need for action to be taken to make that happen. In government, we provided financial support for a wide range of mediation schemes throughout Scotland, including £643,000 for the 10 local family mediation services in 2006. We also supported pilot schemes in the courts in Glasgow and Aberdeen. We tried to increase public awareness of alternatives to the courts by supporting the Scottish Mediation Network to develop not only public awareness but a much-needed quality assurance scheme to ensure that people have faith in the services that are being provided. I thank all the volunteers and everyone who works in mediation services, in law firms and the voluntary sector, for the important work that they do in that field.
Youth offending remains a major problem for all of us. We believe that there are ways in which acceptable behaviour contracts, for example, which encourage individual agreements between the parties to a dispute, or between offenders and their local communities, can resolve situations. We also support the introduction of youth justice panels that are modelled on New York and Home Office schemes in which volunteers talk to young offenders and agree tailor-made contracts that are aimed at resolving offending behaviour. Youth justice boards have also proved successful in New York, where teams of 14 to 18-year-olds meet to agree ways in which wider juvenile justice problems can be addressed.
Will the member provide evidence for what she has said, as it is contrary to what I have heard?
We do not have all the answers to the problems; rather, we are trying to say that a range of different options could be tried in some cases, probably in low-level situations. Mr Aitken knows that the Conservatives have used the New York scenario and have referred to the improvements that have been made there. We simply say to the Government that it would be worth while to look at the work that has been done there to involve young people in decision making on youth justice and settling problems. We think that involving young people in the justice system promotes responsibility and possibly prevents the alienation that often leads to antisocial behaviour.
Figures from the Department for Environment, Food and Rural Affairs show that, where mediation is used, full agreement is achieved in an average of 84 per cent of cases and no improvement is achieved in only 7 per cent of cases. Those figures clearly suggest that an expansion of community mediation would have a beneficial impact on dispute resolution in Scotland.
However, as I said at the beginning of my speech, things are not all positive. I have received feedback from concerned constituents about the workings of the new additional support for learning tribunals, which continue to result in stressful experiences for many families. Such families continue to feel that councils have access to many more big guns than they do. Will the minister tell us when the workings of those tribunals will be reviewed to ensure that their success rates and participant satisfaction rates are monitored?
The vast majority of members in the chamber support moves to promote, support and increase the scope of ADR, but the onus is on the Scottish Government to take matters forward and to continue to resource resolution and mediation services throughout Scotland. If the Government does that, we will undoubtedly support it.
The lawyers come out of the woodwork at the mere mention of the phrase "alternative dispute resolution". When I was listening to the speeches that have been made, I calculated that 14 per cent of members here are former practising solicitors, and there are other members with law degrees.
I am a former civil court lawyer and legal aid practitioner and I agree with much of what Margaret Smith said. In dealing with family and contract law and delict cases, the last place that a lawyer wants to take a client to—believe it or not—is a court.
First, the lawyer has to erase from the client's mind the idea that they will get justice. Although they might get justice if they are lucky, what they tend to get is a result. One wants to get that result out of court if at all possible. In many cases, particularly family law cases, one must try to resolve as much as possible either by mediation, to which I will return later, or simply by negotiating with an experienced family lawyer on the other side. When dealing with money, both lawyers generally know where they will end up. Sometimes issues to do with the children cannot be resolved, parties dig their heels in and, probably against their solicitors' advice, end up in court.
The client has to understand that, even if they are successful in court and they get an award of expenses, that will not pay their legal costs. Certain costs are not met by judicial expenses so they end up out of pocket. That puts to the side stress and the time that is sometimes squandered in litigation when matters could have been resolved much more quickly. On behalf of my former profession, I say that many lawyers try to get their clients to a resolution sooner rather than later and it is sometimes the client who makes the lawyer continue along the road to court.
Many years ago, mediation was recognised as an essential asset to family law, but it can be used in other areas too. Our language is slipping a bit between "arbitration" and "mediation" this morning, but the two terms are distinct. Arbitration is still a litigious forum and, at the end of proceedings, a decision is imposed on one of the parties. In other words, there is a winner and a loser. Mediation is quite different—the disputing parties arrive at a mutually acceptable solution. As Margaret Smith put it so well, mediation is a "journey of the willing". In other words, there is no winner or loser; both parties agree and perceive themselves as winners. If a resolution cannot be arrived at through mediation, I regret that the parties have to go to another forum such as a tribunal or court.
As I have told the chamber before, many years ago with my Justice 1 Committee convener's hat on, I went to Baltimore with an esteemed group of people, among whom I must name the Lord Justice Clerk, the head of the Scottish Legal Aid Board, the Scottish Law Commission and the Sheriffs Association, and Ruth Wishart. What did I do with them on that flight to Baltimore? I will tell members now that they are gripping their seats: I went to learn about mediation in that place that Bill Aitken referred to so disparagingly as the
"other side of the pond".
I was on my way to Maryland where a large mediation network has been functioning for an extremely long time. I have become that terrible thing, not just a disciple but a convert and indeed a proselytiser. I saw in Baltimore how mediation can operate at all levels. The mediation approach was driven by an extraordinary state governor who was also head of the judiciary. I offer some examples of how it worked.
We went to a street where the children had been kicking and throwing balls and playing basketball and had damaged some cars—the usual stuff that happens in Scottish streets. The neighbours were disputing what had happened, the children were being blamed and a rammy was going on. The neighbours, youths and children were brought together to see how the situation could be resolved. It was resolved by providing the children with an area where they could play and engaging them in competitions that were assisted by several of the neighbours. The result was that cars in the street were protected and children were able to play elsewhere. That was a street-level situation.
My breath was taken away even more, however, when we went in our transportation—into which we piled every so often to see such places—to a very smart area in Baltimore and a glassy, glossy building with landscaped gardens in which deer wandered about, to be told that it was a commercial law firm. We went inside to find a whole department dedicated to mediation in large commercial contracts. We are talking about family mediation, neighbour dispute mediation and major mediation in commercial contracts when millions of pounds are at risk. They recognise in Baltimore that they save money in the long run by reaching agreements.
I am a great believer in mediation because, as well as saving money for individuals and corporations—for which we pay at the end of the day—it saves the public purse money by sustaining a court system in which we do not need so much activity. Of course, it also saves on our legal aid bill, particularly our civil legal aid bill, which is under so much stress. I commend to the cabinet secretary mediation as distinct from arbitration. I am very happy to take him with me to Baltimore to see how mediation works. While we are on the plane—I want to go business class, please—I will ask him to consider using a term other than ADR, because it is not exactly zingy.
I am grateful, almost beyond words, for the opportunity to take part in this morning's debate on a subject of importance to the people of Scotland. Indeed, it will be some time before I forget the kindness of the Labour business manager, Jackie Baillie, in making me an offer that I could hardly refuse and be civil.
As members have said, there is little, if anything, in the Government motion with which one could disagree. It is only common sense that we in Parliament should strive to support and expand on the variety of dispute resolution schemes that are available to the public. I doubt that anyone in the chamber would disagree with the proposition that the importance of quality and accessible advice and information are absolutely fundamental in civil justice. Of course, as Bill Aitken said, there will be cases when a formal court process is required, for example when a court's authority is necessary to recover property, to obtain recompense for injury, to prevent damaging or destructive behaviour, or to challenge the actions of a public authority. However, expensive litigation should be avoided whenever possible, as long as that does not place in jeopardy the rights of the individual citizen.
A number of options are open to the individual when confronted with sorting out complaints and legal problems. They include, as has been said, mediation, ombudsman schemes and arbitration, and they are often styled as alternative dispute resolutions of one kind or another. Such negotiation-based means of resolving disputes can offer a practicable alternative to costly, slow-moving litigation or, at the very least, they can help to identify key issues, ensure that dialogue continues and avoid positions becoming too entrenched, which is all to the good.
In the time remaining, I will focus on certain aspects of mediation and say a little about arbitration, to which the cabinet secretary referred in his opening remarks. I am sure that he agrees that the previous justice ministerial team carried through a number of positive mediation innovations. That team sought to promote good practice in mediation and public awareness about it by working in partnership with the Scottish Mediation Network. That network was funded by the previous Executive to develop a quality assurance framework across all aspects of mediation, which was a sensible and necessary step.
I hope that the present ministerial team can assure us that other measures that Cathy Jamieson and Hugh Henry set in train will still be supported, for example the work of the Justice Department's analytical services division with the Scottish Mediation Network to develop a resilient evaluation framework and to evaluate the in-court mediation pilots that were launched in Glasgow and Aberdeen in May 2006 by the then Deputy Minister for Justice, Hugh Henry. If we are to construct mediation services that are fit for purpose and bring maximum benefit to our constituents who need them, those measures need to be developed and built on by the present Administration.
I want to say a word or two about family mediation services. In 2006, the then Justice 1 Committee—Pauline McNeill referred to its report—agreed to appoint our colleague, Mary Mulligan, as committee reporter to an inquiry that examined various aspects of the provision of family support services in Scotland, with a particular focus on the provision of adult relationship support services. In her report's conclusion, the MSP for Linlithgow raised a number of concerns, one of which centred on the then Executive's
"change in policy to postpone until 2007-08 the transfer to GAE of funding for local mediation services, and then to ring fence this funding until 2009-10."
The reporter welcomed that change of tack. Will the cabinet secretary or Mr Ewing, in summing up, assure the chamber that the present Administration will honour that decision?
The reporter was also concerned about what will happen when funding is transferred to grant-aided expenditure and how the money, which currently provides for 10 local mediation services, will be divided among the 14 regional services. I wonder whether Mr Ewing will shed some light on the present Government's attitude to that specific concern.
Finally, the reporter urged the previous Executive
"to guarantee that current budgetary allocations for local mediation services will not be reduced."
Is the cabinet secretary or his colleague Mr Ewing able to give that reassurance on behalf of the new Administration? I look forward to hearing Mr Ewing's thoughts on those matters in his summation.
In arbitration—which, as Christine Grahame quite rightly pointed out, is a specialised procedure—disputes are, by agreement between the parties involved, referred for resolution to an independent third party, known as the arbiter. In its manifesto, the Labour Party pledged to introduce an arbitration bill that would draw on the detailed review of the law that was outlined in the Dervaird report in the 1990s. I note that the SNP also pledged to develop a modern arbitration system for Scotland, so I unreservedly welcome the cabinet secretary's pledge earlier this morning to introduce a bill in spring 2008 to ensure that arbitration can be modernised. I am often accused of not being a moderniser on certain matters—of course, I remember the days when the cabinet secretary himself was no moderniser—but I am delighted to accept the need for modernisation in this area. I am sure that we all look forward to examining the bill in detail when it comes before us.
The development of a variety of properly funded and resilient dispute resolution schemes is central to the creation of a modern, flexible system of justice. Previous Governments have recognised that as the way forward, and I am sure that as long as the present Administration does not deviate from that course, it will have the whole chamber's support.
Before I begin, I should declare that I am retained in the role of solicitor in Scotland, although I have not formally practised for five years. As a result, I do not stand either to gain or to lose from the introduction of ADR.
As the correct resolution method for any dispute depends entirely on the desired result and the complexity of the case in question, a range of options is needed to deal with disputes. As far as formality is concerned, at the top of the chain is, of course, court procedure. Pretty much everything below that is referred to as ADR. The most formal form of ADR is arbitration; slightly less formal is adjudication, which I will focus on in my speech; and less formal again is mediation, about which we have heard a great deal this morning. In fact, my colleague John Lamont will tell us more about what has happened with mediation south of the border. Another less formal method is negotiation.
In his opening speech, the cabinet secretary referred to the introduction of an arbitration bill, which is to be recommended and applauded. I intervened twice in his speech. I thought that his answer to my first question was good, but his response to my second, on his view of the Scottish arbitration code, left me wanting just a little bit more. In 2000 or thereabouts, fed up with the fact that the Parliament had not yet introduced an arbitration bill, all the experts—industry and legal profession experts, surveyors, engineers and consultants—got together and produced the Scottish arbitration code. The cabinet secretary is wrong to say that it is outdated; indeed, I commend it to him as an excellent piece of work that could form the cornerstone of any arbitration bill. It is vital that we consider the code before we start the process from scratch.
Although arbitration can be an excellent course of action, I should highlight some of my reservations, as certain comments that have been made about it have been a little bit wide of the mark. It is, for example, a myth that arbitration is always cheaper. Its biggest benefit is that a man or woman of skill is brought in to decide on the technical issues in question. However, lawyers are involved for most of the time and, unlike judges, who are paid by the state, the arbiter needs to be paid by the parties involved in the dispute. Moreover, because the arbiter is not always a legal expert, he or she will, most of the time, require the help of clerks, who, as fully qualified lawyers, will also need to be paid by the parties.
Because it is confidential, arbitration can be good, for example, for parties who do not want matters to get into the public domain. It can be faster, but it can also be just as time consuming as other methods. It has its benefits, but we need to go into it with our eyes wide open.
Bill Aitken referred to certain low-value cases that take up an inordinate amount of time in the courts and cost a lot of money. It is important that we prioritise how we deal with such cases. The complexity of some low-value cases means that they must be decided in the sheriff court, but there must be some way of getting into mediation cases in which only value or quantum is under debate or discussion. As Mr Aitken was commenting on such low-value cases, I noticed his fat, juicy wallet stuffed with bank notes, and I had to wonder what he actually meant by low-value cases. However, we will skip over that question.
My main experience as a solicitor was in adjudication, which has not really been discussed this morning and which, in terms of formality, sits somewhere between mediation and arbitration. The only form of adjudication in Scotland was introduced under the Housing Grants, Construction and Regeneration Act 1996 and applies to construction contracts. After all, in the construction industry there are almost always disputes about time, money or—most commonly—time and money.
Because they involve a web of parties, construction contracts can be pretty complex and, after much lobbying from the industry, the Westminster Government at the time—a Conservative Government, I should point out—introduced adjudication to deal with disputes. It has certainly helped the construction industry a lot. Now every party in a construction contract has a statutory right to go to adjudication. If both parties agree, the matter can go to court instead, but one party cannot veto the other's right to adjudication.
Did the member specialise in construction law?
My boss would have said that I did not attend university the day they taught law, but it could be said that I specialised in that area for a while.
The biggest benefit of adjudication is the requirement in the 1996 act for the adjudicator to reach a decision 28 days after the notice of adjudication has been lodged, although there is a provision to extend that time limit by 14 days. In 90 per cent of adjudication cases a result is delivered within 42 days, and in 60 per cent of cases within 28 days. The decision is binding, which means that the parties still have to pay up in the interim, but it is not final and can be appealed in a court of law if a mistake has been made or if, ultimately, the parties are unhappy with it. The fact that payment has to be made has been very important in an industry in which small firms can easily go to the wall if someone decides to delay payments for years and years. Now they have to cough up within a very short time of the decision being made. In considering the various methods of taking forward civil justice, we could learn a lot from the nine years' worth of positive and negative experiences with adjudication, and I commend the system to the cabinet secretary.
I will leave it to my colleague John Lamont to talk more about mediation. The Woolf reforms resulted in the civil procedure rules that tightened up mediation and made it an integral part of civil dispute resolution south of the border. I apologise to Christine Grahame, but there is no longer any need for us to go to the United States to learn about mediation. Mr Lamont, who qualified and worked south of the border, will tell us more about it. We are way behind England and Wales.
I asked the cabinet secretary my initial question because I wanted to make it clear that, in order for mediation to succeed, if we are going to follow what has happened south of the border, we need either strong judicial encouragement for it or legislative, governmental encouragement for it. One way in which the Government could take the lead without having to pass any legislation and without any judges having to say anything would be to declare that mediation will be used as a first resort. The cabinet secretary gave a good answer when he said that it is important that the courts are still used for interim interdicts, but the Government could say that mediation should be used as a first resort.
Although I have not seen any details, I am certain that there are cases in which the Government will be involved that are just lying about in the rolls of court somewhere and are not being processed at all. Some cases will always need to go to a court of law for a final determination, but there is great scope for arbitration, adjudication and mediation.
I finish with a question that David Mundell asked when he was an MSP:
"To ask the Scottish Executive what plans it has to investigate the scope for the further use of alternative dispute resolution in the Scottish civil justice system."
The question was answered by Mr Jim Wallace:
"The Scottish Executive is interested in investigating the possibility of widening the scope for the use of alternative dispute resolution".—[Official Report, Written Answers, 11 January 2000; S1W-3494.]
That answer was given on 11 January 2000. Let us hope that, if the same question is asked in three years' time, we will get a slightly different answer.
Unlike some of the more seasoned practitioners in this sphere, I do not propose to compete on length of speech. Because we have considered the subject widely, I am looking through my notes to see how I can avoid repetition. I will start with the structural issue.
Several words have been used today that I would like to pin down. It seems that the matter is as simple as A, B, C. Arbitration, A, is different from mediation, which is B for reasons that I will explain in half a moment, which is different from counselling, C. As has been pointed out, arbitration is about a voluntary agreement to put a dispute in front of an arbiter who will come to a decision that the parties will stick to. Mediation is a voluntary agreement to see whether the parties can sort out the mess. I have called that B because it happens at and after the point of breakdown. The C stands for counselling, which is a voluntary agreement to see whether the parties can sort out the mess before it gets to the point of breakdown. If I am right in saying that it is sensible to use those words in that way, I ask for consistency in the way in which we use them.
In my previous employment, I had to talk about risk, which is a correct technical term that insurers use. Sometimes we use it for hazards, sometimes we use it for probability and sometimes we use it for one multiplied by the other. In talking about risk, it is very much better not to use one of the other terms. I suggest that, in talking about arbitration, mediation and counselling—if we are happy with those terms, and I stand to be corrected—we would do well to use the terms correctly.
I also make the point that those three terms are used for the willing, whereas the courts are, by and large, for the unwilling—those who have not found another way of resolving their dispute. The courts are available for those who have reached the point of breakdown, regardless of the value in dispute. Someone could go to court over a fiver—although that would be unwise—because they had not sorted out what they were going to do with it. If they had already worked out that they needed to sort out the fiver, they could probably go through mediation. The distinction between the courts and alternatives is more to do with a willingness to think about the process than it is to do with the value in dispute.
I do not want to get into a legal debate, but Nigel Don may find that arbitration is sometimes a contractual obligation, meaning that if there is a dispute someone must go to arbitration. They could be described as willing at the point of contract, but they are contractually bound to go down that route.
My point is that the person was willing at the point of contract, having thought about the matter beforehand.
I turn to family law issues, although I do not pretend to be a practitioner in the area and I will not cover issues that other members have already considered extensively. From my experience of dealing with a constituency case, I am aware that there is a real issue with cross-border jurisdiction. It may be a technical issue, but I raise it in the context of possible European mediation. I am dealing with the case of a child who was removed from Scotland to England—I hesitate to use the word "abducted", as that would presume that the answers were known. The case has been the subject of legal proceedings north and south of the border for years, at huge expense, as members will understand. It is a classic case of something that could have been sorted out had there been a pan-European mediation process for such cases. Given the mobility of labour and people in the European Union, that may be a deficiency. I am not sure that the Scottish Government can resolve the issue instantly, but it might use its good offices to push for a resolution.
On counselling, I will pick up where I left off yesterday evening. I was at a dinner, and an experienced and eminent doctor pointed out to me that most cancer cases are admitted to accident and emergency units, because only when the patients have an acute problem do they go to hospital and find that they have an undiagnosed chronic problem. That is relevant to the issue of counselling, in particular to counselling for family issues.
We like to think that the situation was better in the good old days. I am old enough to remember when London had smog, although it was probably 30 years before I realised what it was. That goes back to the late 1950s. Were those the good old days? Probably not. However, in the aftermath of the second world war, families tended to talk to each other more—we had natural family communities and neighbours. I get the impression that, in the intervening years, such things have tended to break down, and one of the reasons that we now have more family disputes is that they are no longer easily resolved internally.
That leads me to the point on which I will end. It would be good if families that were breaking up recognised that they had a problem and could find counselling. Such services exist, but I get the impression that they do not exist as widely as they could. I am sure that if there were more family counselling services, a lot of what follows from breakdowns could be nipped in the bud. I am interested to know where the Government is thinking of going on that and, in particular, where it is going to put its funding to try to break the cycle of family break-up. I am sure that that is part of the Minister for Communities and Sport's planning.
Like other members, I welcome the opportunity to speak on alternative dispute resolution. When I first saw the subject in the Business Bulletin, it did not strike me as one of the more exciting topics for debate. However, having heard members' speeches this morning and having looked into the matter, I recognise that ADR is important to Scotland and its communities. It has a crucial role to play and it is vital in resolving disputes. The debate presents an opportunity to highlight on-going work on ADR and to focus on potential ways forward for people in difficulty. It also lets us explore the different methods of ADR, which we should try to ensure are more widely used.
Clearly, ADR is an alternative to going to court, which is a major advantage and is attractive to people who are a bit averse to going to court and are intimidated by it. Another barrier to going to court is legal costs. ADR is attractive as an alternative to court, because arbitration or a third party can be used to find a solution to a problem.
Some lawyers are wary of ADR—we have heard from a few learned friends during the debate. However, a strong social justice issue is involved, and ADR has an important role to play from that viewpoint. ADR can help to solve problems and resolve disputes, and can help people to win their rightful compensation. It can also protect their confidentiality.
In dealing with constituency cases, I often find that people come to my surgery feeling frustrated and upset. They come to their MSP when they have been badly treated by organisations or individuals because they feel that there is no one else they can turn to for help. ADR can provide a platform for justice in such cases and give people who feel powerless a voice.
The SNP's legislative programme, which was announced in September, was somewhat light. It could have provided a window of opportunity to introduce ADR proposals. However, I welcome the cabinet secretary's announcement that a bill will be introduced in the new year. I am sure that that is welcomed throughout the chamber.
I pay tribute to the work of citizens advice bureaux in trying to resolve disputes. They provide an invaluable service to local communities. I am fortunate in having two citizen advice bureaux in my constituency—one in Rutherglen and one in Cambuslang. The latter office, which was opened in the summer by Princess Anne, is staffed by experienced people with expertise in a range of areas, and it uses the latest information technology to provide an important service to local people by advising on disputes and providing guidance on ADR.
Recently, the Scottish Public Services Ombudsman acknowledged that health is one of the biggest areas for complaints. That is mirrored in some of my surgery cases. Where possible, it is important to try to resolve such cases at a lower level—at the general practitioner level. GP practices do important work in that regard.
I visited a GP practice recently that has a mature attitude to complaints. When someone makes a complaint, not only is the practice not defensive about it, but the complaint is investigated and the practice tries to learn from the experience. That is an example of good practice in the complaints process.
ADR arbitration can also be used to address housing issues. For example, there are many neighbour disputes about harassment and noise. I am sure that many members get such cases at their surgeries. Many councils use mediation in such cases, which plays an important role. It is important to stand up for the victims and ensure that justice is done.
In my constituency, there is an on-going housing dispute for which mediation is important. Residents of south Toryglen have an issue regarding repairs to the external fabric and roofs of buildings that were promised at the time of stock transfer. The repairs have not been carried out because of the lack of funding that is available to Thistle Housing Association.
The Toryglen home owners group feels aggrieved at the role that Communities Scotland—which is soon to be abolished—has played in the situation, and has taken its case to the Scottish Public Services Ombudsman. It is a serious matter, because housing in Toryglen has been underfunded. I tried to mediate in the dispute by requesting that the Minister for Communities and Sport, who has responsibility for housing, meet me and Thistle Housing Association. The request was declined, but I will continue to press the matter.
I have enjoyed the opportunity to take part in the debate, which has helped to raise the profile of alternative dispute resolution. ADR provides a way forward for people in communities throughout Scotland who are looking for a voice. I look forward to the proposals that the new Administration will introduce in the new year.
It is a great pleasure to speak in the debate. However, at this stage, we tend to find that other members have made many of the comments that we intended to make.
I want to return, however, to Gavin Brown's point about David Mundell's written question to the then Minister for Justice, Jim Wallace, in December 1999. Gavin Brown quoted only part of the minister's written answer in January 2000. The minister also stated:
"Research is currently being undertaken on the effectiveness of the mediation services provided as part of the In-Court Adviser service".—[Official Report, Written Answers, 11 January 2000; S1W-3494.]
Almost eight years later, the new Scottish Government has key principles and priorities in connection with its declared objective of creating safer and stronger communities. As a way of significantly reducing the need to go through the court process, the Administration has placed an emphasis on the introduction of dispute resolution processes and the development of a modern system of arbitration in Scotland, which is highlighted in the document "Principles and Priorities: The Government's Programme for Scotland".
The lasting benefit of alternative dispute resolution is that it greatly reduces both sides' expenses in a dispute. Pursuing grievances through the courts is burdensome; neither side is the winner because going to court is an expensive and costly mechanism for all parties.
The need to save the public pound is also an important point that any Government must address. Preventing unnecessary expense is a saving for us all as taxpayers. The requirement for public bodies to save money, particularly when they may be involved in litigation, should be of paramount importance. The opportunity cost of unnecessary litigation is that money is denied to vital public services such as hospitals, schools and community facilities.
Alternative dispute resolution is not an unfamiliar process to members who have a background in pursuing economic and social justice. We are all well aware of the need to develop practical solutions for everyday problems. The concept of ADR is well founded in good practice in the modern workplace, as Pauline McNeill said in relation to the Advisory, Conciliation and Arbitration Service. There is good practice in arbitration in industrial relations, but there should be more arbitration in commercial disputes.
A number of years ago, ACAS found that, in certain disputes for which arbitration was required, employers were not applying employment legislation correctly. ACAS believed that the employers needed training and so referred individual employers to lawyers who specialised in employment law. The advice was that the employers should get that training because they needed it.
Over a number of years, ACAS has developed its own training services. It must be commended for the level and range of training that it has provided to employers, which has helped to prevent the types of dispute that previously took place because employers were unaware of their responsibilities under employment legislation. ACAS provides an example of good practice in taking things forward through not only arbitration, but the delivery of training.
We should focus particularly on how ACAS has acted as a champion in helping to sustain a motivated workforce. It has shown the kind of leadership that is particularly relevant in ADR. ACAS has achieved significant advances in marketing its model workplace as a vital tool, which gives employers and employees practical, effective assistance. Such diagnostic models and examples of best practice can be used to inform the Scottish Government's direction of travel on mediation services.
There is a requirement to resolve disputes. Less than 50 per cent of the people whose disputes were resolved through the courts or tribunals as a last resort said that they had been well served by the process, whereas 70 per cent of people who had resolved their problem by agreement said that they had achieved or partially achieved their objective.
Research into ADR continues, but take-up and use of ADR vary and the old adage about having one's day in court seems to persist. We should focus on work on the key principles behind the establishment of an ombudsman. In essence, appropriately qualified third parties should assist people to resolve their problems without recourse to the courts. Research that the previous Scottish Executive and the Scottish Consumer Council undertook highlighted the need for the civil courts review that is going on under the chairmanship of the Lord Justice Clerk, Lord Gill, in the context of the promotion of dispute resolution at an early stage without recourse to the courts.
The booklet, "Resolving Disputes Without Going to Court", which was published in November 2006, noted that people need to agree that ADR can produce the result that they want. As the booklet says, if the priority of a person who has been injured during medical treatment is compensation rather than redress, they are unlikely to get the outcome that they seek through the Scottish Public Services Ombudsman. That might explain the situation that Andy Kerr described in his response to a written question in 2006, in which he said:
"The number of cases alleging medical negligence against NHSScotland put forward by the Central Legal Office for alternative dispute resolution, including mediation, in each year since 1999-2000 is seven."
The response continued:
"Of these cases, none achieved a satisfactory conclusion through the use of alternative dispute resolution."—[Official Report, Written Answers, 19 September 2006; S2W-28243.]
It would be remiss of me not to note that there is resistance to ADR throughout the legal fraternity and society at large. I urge members to support the cabinet secretary's motion, and I ask the cabinet secretary urgently to progress the establishment of ADR schemes in Scotland, to address the gap in the system.
Like all my colleagues, I have been looking forward to this debate with keen anticipation. I sympathise with my old friend Bill Aitken—a legend of the old Glasgow borough court. I think that the debate might have been included in today's business programme to fill up time, given the almost complete absence of a Government legislative programme. I also sympathise with John Wilson. At this stage in the debate, what is there left to say? Everything has been said, as a colleague put it, although not everyone has yet said it. I will try to say something different.
I particularly welcome the proposal to make Edinburgh a world-class centre for arbitration in cross-border disputes, which would confirm the city's leading role not just in Europe but in the world. Edinburgh is Europe's fourth largest financial centre, and huge international conferences are held here. I remember attending the Commonwealth heads of Government meeting here in 1997, for which there was a huge policing requirement. Edinburgh's leading role underlines its need to be granted capital city status. The extra cost of policing of infrastructure needs to be considered. I pay tribute to Margo MacDonald, who has led the campaign for capital city status. Such recognition for Edinburgh was supported by Kenny MacAskill and Fiona Hyslop when they were in opposition, so a third of the Cabinet is behind the campaign. That is nearly as many people as there are Hearts supporters in the Cabinet—I was looking forward to saying that. I hope that we can expect action.
My only concern about a debate on alternative dispute resolution in the Parliament arises from the fact that some people in the Government seem to be courting dispute with Westminster and Whitehall. They should be careful about doing that. John Curtice implies that courting dispute with Whitehall is standing up for Scotland and has been useful for the current Scottish Administration. I agree that that can be the case when disputes are justified, but unjustified disputes do harm to the Government and to the Parliament.
I thought that Nicol Stephen and the First Minister might need alternative dispute resolution the other day, when we found out that el presidente had sent letters to 189 heads of Government, including at least four dictators—although even I can work out that four is not a majority of 189. I am looking forward to the replies that el presidente receives. Some of his correspondents might offer to visit him in Edinburgh. We would need an awful lot more police if that happened.
A great advantage of settling criminal cases out of court is that there is no need for a police presence in court day after day, which takes up valuable time. The police officers who would have been in court can be—I use one of the three Rs—redeployed on the beat. It is a pity that the Cabinet Secretary for Justice is not in the chamber. He described the retention of the police as keeping the "wise old owls", whereas recruitment was about bringing in "eager new beavers". We will hold him and the Scottish Government to their promise to provide 1,000 new policemen, delivered through recruitment, not retention or redeployment.
I remind the member that we are debating alternative dispute resolution. It would be useful to hear his thoughts on that.
There is no vacancy for a Deputy Presiding Officer, but if there were, I am sure that the member would be a good candidate, although not as good as the Deputy Presiding Officers that we currently have.
I sincerely welcome proposals for alternative dispute resolution if it means fewer lawyers—unless it means that there will be more lawyers in the Parliament, of course.
Marriage guidance has been extremely useful for couples in dispute. ACAS is useful in industrial disputes, which have not been mentioned—[Interruption.] I am being told that the matter was mentioned—I am sorry; I did not hear that. We need more work on disputes over land and property, wills and a range of other matters. There should be more mediation—I misread that in my papers as "meditation", which is useful, but not as useful as mediation, which I certainly support. I understand that the Presiding Officer will mediate later today, when the draw takes place for the semi-final of the CIS cup. I hope that he will produce a solution that is acceptable not just to half the Cabinet but to me.
Last night, I told two friends that I would be speaking in this debate. They gave me rather different advice on alternative dispute resolution. One friend's advice, which might work in some but not all instances, was, "Get the person to sit down with a mediator. They should take three sheets of paper: one for a list of things they want; one for a list of things they don't want; and one for items from both lists on which there's a possibility of finding middle ground." The second friend's advice was a wee bit simpler. He said, "Why not just take a big piece of wood with a nail in it and hammer people?" When I questioned whether that was a metaphor for the approach that the Westminster Government used when introducing its housing stock transfer policy, that part of the conversation soon ended and we moved on to something else.
I certainly do not advocate the stick-and-nail approach and I am not sure that the three-sheets-of-paper approach would have great success, either. However, methods exist that can be used, particularly with neighbour and community issues. As has been discussed, mediation is one method that can be used as an alternative method of dispute resolution. It can be used for a variety of problems that affect people, such as arguments with neighbours, antisocial behaviour and arguments in the family home. I will focus on disputes with neighbours. Every member will have cases that involve antisocial behaviour or complaints about one person's actions that have a negative effect on their neighbours' lives. The ideal solution would be a simple knock on the door and a friendly chat about the issue, which would, one hopes, sort out the problem. Unfortunately, times have changed and confrontation may well be the result of that type of action. No one wants confrontation, particularly with a neighbour, so other methods must be examined. Furthermore, the courts and legal action must be the last resort in resolution, as that process can be protracted, time consuming and costly.
Community and neighbour mediation is a way of resolving disputes between those who have issues. It operates with trained mediators who help both parties come to an agreement about the problem at hand and, thankfully, it has a high success rate of about 90 per cent. An independent mediator is present to facilitate the process of the two parties reaching an outcome. If a binding agreement is formed, the courts can, if necessary, ensure that a certain course of action is followed. However, people tend to comply with such agreements and thus do not need the courts at all.
If members looked at the advice on websites such as Shelter Scotland's, they could be forgiven for thinking that much of the information is common sense, such as the suggestions that people should introduce themselves to their neighbours when they move into a new house or ensure that they look after any pets properly, keep an eye on children and do not play music at excessive levels. The vast majority of the population live their lives using that commonsense approach. However, it takes only one person or family to make others' lives unpleasant, which is when mediation can play a part.
Research that the previous Executive undertook highlighted a few points. The largest category of disputes concerns complaints about noise from music systems, televisions and laminate flooring. The second major cause for complaint is the behaviour of children, including noise, arguing, littering, fighting and vandalism. The main referral route for most participants is via the local housing officer, who is often aware of the difficulties between neighbours. The research also showed that 61 per cent of cases that use the mediation service record a positive outcome, in that either the problem is resolved or the situation improves in some way and that, in 28 per cent of cases, agreement is reached on all the issues. People's view of the process is generally positive, although several participants stated that it was more traumatic than expected. Although the research showed that the outcome is unsatisfactory in 39 per cent of cases, it showed that mediation is a useful and successful method of resolving disputes.
From a financial perspective, mediation is extremely cheap compared with going through the courts. The same Executive research found that the average cost of handling a case was £121, which rose to £204 when face-to-face mediation was involved. The average cost of the legal cases that were examined was £3,546. The average cost of introducing antisocial behaviour orders was approximately £2,250 and for repossession actions it was £9,000. The research shows that mediation has a valuable role in sorting out disputes and that it is effective in keeping people away from the expensive and time-consuming legal system, as other members, including Bill Butler, have mentioned. That can only be good for those who are involved in disputes and for the legal system, which is already clogged up.
I was totally unaware that we have just had Scottish mediation week, which ran from 15 to 19 October. I am sure that, with greater publicity of that week and of debates such as this, politicians with no legal background and the public will have greater awareness of mediation and other forms of alternative dispute resolution, such as conciliation, ombudsmen, arbitration and adjudication, to name just some.
Most members who have spoken in the debate have prefaced their speeches either by making an excuse about why they are in the chamber or by saying why they have a particular interest in the subject. Like other members, I am interested in justice being done and in my constituents having access to justice, but the reason why I am speaking in the debate was pressure from a friend. That friend was talking to me about part of Cumbernauld coming ninth this week in a list of nominations for Scotland's most outstanding places. Members will know that Pauline McNeill is from Cumbernauld—wickedly, she used that excuse to hook me into speaking in the debate.
Most of us are fortunate in that we will not have to deal with going to a court or tribunal to defend a case or to seek for action to be taken and so we will not have to consider the implications for our personal lives. Thank goodness for that, as the prospect of going to court can be stressful and puts many people off, even when they have a sound and just case. I am sure that people are put off by the formality of the situation and by the costs. I am pleased to support the Cabinet Secretary for Justice in his efforts to continue the previous Executive's work on developing a broad range of dispute resolution schemes.
As we know, many disputes can and should be resolved without the need to resort to a court or tribunal. Members will agree that a modern civil justice system needs a full range of options that can be used to solve problems. We should have a system that is available to anyone who needs it and in which access is not dependent on whether people have the bottle to go to court or on whether it is financially possible for them to pursue a case through the courts. Rich people do not need support and very poor people can apply for legal aid but, for many people in the middle, the costs are prohibitive.
As previous speakers have pointed out, arbitration and mediation can work in a range of disputes, including family relationship and employment disputes and disagreement between neighbours, to name but a few. Some members have pointed out the differences between arbitration and mediation but, regardless of what we call the alternative systems of resolving disputes, interventions that involve parties getting round the table have been shown to work in civil cases.
A Scottish Mediation Network publication states that, through mediation,
"everyone gets a fair chance to be heard. Mediation provides an opportunity for you to say what's important to you and hear the other person's perspectives. The agenda and outcome are controlled by the parties. The mediation approach is problem-solving rather than adversarial and so this often results in creative options for settlement. In mediation, you speak for yourself and make your own decisions."
Interestingly, it continues:
"Mediations are easily arranged. It usually only takes a few phone calls for a session to be set up at a neutral venue."
That is the way in which we should progress. Justice should be seen to be fair and to involve all parties on a level playing field, without one or other being fearful of the situation.
I am keen to have a new statutory mediation framework in Scotland, not just for civil cases but for commercial and enterprise disputes, which have been mentioned. I am sure that Edinburgh or Glasgow would be ideal locations to cater for that need.
In the Labour Party's election manifesto, we stated that we wanted to improve the small claims procedures and to introduce an arbitration bill. I am sorry that the cabinet secretary is not here to hear what I am about to say, although I am sure Mr Ewing will pass it on to him. If the cabinet secretary intends to progress along those lines, I am sure that many members will be willing to sit round the table and scrutinise his proposals, and to help provide a system that can be of benefit to any member of the population in Scotland who might feel the need to use it.
I welcome the motion. George Foulkes started by asking what was left to say, although he referred to a great result in Glasgow last night, which all Hearts supporters will be celebrating today, and he informs me that the First Minister will be making the draw later today. As one of the chosen people—Hearts supporters—I urge the First Minister to ensure that we avoid Rangers in the next round.
As we have always indicated, the Lib Dems are happy to support the Executive when it delivers a positive proposal for the betterment of Scotland's governance. A legal route of discussion and mediation is an empowering resource for Scotland's public, with the potential to prevent and repair the damage that can so easily be caused by disputes. However, as Nigel Don said, mediation is only for the willing. The challenge is to persuade more to be willing to take the route of arbitration. ADR has both the proper respect for the rights of the individual that must be inherent in any valid legal system and the flexibility to offer potential solutions outwith the comparably costly and time-consuming court set-up. I am sure that in time it will prove an invaluable addition to our justice system, as well as a useful resource for communities.
I was interested in Gavin Brown's reference to adjudication in the construction industry, where the process normally takes only 28 days, and sometimes an extra 14 days. If only other forms of ADR were resolved in such a short timescale. That is a real challenge for the Government.
ADR is a step forward, but it must be stressed that it is not an end in itself. As my colleague Margaret Smith has described, it will take more than warm words to tackle the problems faced by Scotland's justice system. Despite today's motion, I question whether the Parliament has yet succeeded in addressing the issue at hand: the exclusion of the local community from the justice system in Scotland, which puts undue pressure on our courts and prisons.
Pauline McNeill put her finger on one of the main problems—the cost of civil law. Margaret Smith and others referred to that as well. Margaret Smith said that only three law firms in Edinburgh do civil legal aid work. People do not have much choice, do they? Pauline McNeill referred to the evidence that we received for the Family Law (Scotland) Bill on the cost to fathers who are trying to access their children—it was more than £50,000. Bill Aitken asked how we can enforce judgments by arbitration. Of course, if one party decides to rebel, other parties have little recourse but to end up in court.
At the beginning of his administration, Mr MacAskill told us that the Scottish National Party would continue the previous Executive's good work in being tough on crime and tough on the causes of crime—a succinct little soundbite, although perhaps lacking its original impact second time round. How it was put notwithstanding, Mr MacAskill's party promised an expansion of community sentencing to free up funding for rehabilitation. Like other members, I look forward to seeing the report on community sentencing some time in the summer of next year.
That is further acknowledgement of what we in the Liberal Democrats have always maintained: short-term prison sentences are not working and there is a desperate need for tougher community sentencing and the enactment of positive, community-centred justice policy. The facts speak for themselves—60 per cent of Scotland's criminals reoffend, yet just £1 invested in proper rehabilitation can save up to £3 in enforcement. Furthermore, mediation works, achieving full agreement in 84 per cent of cases. I endorse what the cabinet secretary said. It is much better to come to an agreement as a resolution out of court. As Margaret Smith and others said, it frees up court time to concentrate on the priorities for the court system.
If proven successful, the expansion of ADR should serve as a demonstration to the Parliament of what can be done through the implementation of positive policy. We will not reduce Scotland's court backlog by demonising young people with an endless supply of ASBOs or through summary short-term sentencing. What is required instead is a concerted effort to bring the justice system back in touch with the community, along with a wider capacity for mediation. We can all learn from the experiences of others. Christine Grahame talked about her visit to Baltimore, and the mediation schemes that were being put in place there. I very much look forward to the cabinet secretary's report on his return from his trip to Baltimore with Christine Grahame.
I am lodging a motion—sign it.
I thought that the member might do that—I will support her in that.
The tools required for progress are at our disposal. They include the introduction of youth justice panels, whereby volunteers can talk to young offenders and agree a tailor-made contract to resolve their behaviour; the continued expansion of other mediation initiatives, such as acceptable behaviour contracts, which have been going from strength to strength in recent years; and further extensive investment in the rehabilitation of prisoners, to help them to learn skills for work and to break the cycle of reoffending.
That is not to imply that all we have to do is to enact a series of quick fixes. There is a lot of work still to be done, and I look forward to the conclusions of the report on community sentencing that I mentioned earlier. However, we have been down the road of strict enforcement and zero tolerance before. It was never successful before 1999, and this devolved Government should not repeat old mistakes. In other parts of the UK, more positive policies are beginning to bear fruit. I have noted previously in the chamber the example of Lib Dem-controlled Islington. Former Home Secretary Charles Clarke has described acceptable behaviour contracts there as being a far better option than ASBOs.
The expansion of ADR can be seen as a step forward, albeit just the first step. If the Parliament is to reduce crime levels effectively and end the current cycle of reoffending that is the primary source of pressure on our courts, it must take this opportunity genuinely to involve all our local communities and other agencies in both policing and the justice system. I heartily support the principles of the motion, but it is only through the application of further positive policy that Scotland's justice system will move forward.
As Gavin Brown did, I start by declaring a slight interest in that, as a former practising solicitor, I am still on the roll for England and Wales. I started life as a solicitor at Freshfields Bruckhaus Deringer in London before I graduated to Brodies in Edinburgh. Both were tremendous firms for court work—I am probably here as a result of that.
A sinner who repenteth.
Indeed.
The debate has reminded me of all the reasons why I was not a court lawyer. I focused on commercial property, which in my opinion was much more interesting.
Alternative dispute resolution such as mediation, conciliation, arbitration and the use of ombudsmen can be a more cost-effective, more rapid and less stressful form of civil justice. It can resolve minor conflicts—especially relating to family problems—personal injury cases, problems at work and disagreements between companies and trade associations. One important point, which has not really come through in the debate, is that such schemes are not intended to take the function of the court system. However, use of the schemes as an initial means of sorting out differences should be encouraged. Another important point is that this is about civil justice and not criminal justice. That is certainly my understanding of the area at which the motion is aimed.
In November 2005, the Scottish Consumer Council investigated the civil justice system in Scotland. Its findings became the foundation for the civil justice reform debate in the Scottish Parliament in April 2006. I am pleased to hear that the cabinet secretary has restated his belief in Scotland's international reputation in finance and law. That reputation places Scotland in an ideal position to offer world-class arbitration services to its citizens.
My party has always supported the view that some issues might be better resolved by mediation or ADR without resorting to court. In such cases, skilled advice will still be required, but a court may not necessarily be the appropriate forum.
Alternative dispute resolution offers various methods of mediation and negotiation as a primary level of reconciling differences. We have heard about a number of them during today's debate. Alternative dispute resolution can, depending on the situations of the parties to the dispute, have various advantages over going to court, including greater flexibility, faster solving of problems and less stress, and it can potentially cost less.
However, it is also important to remember and emphasise that alternative dispute resolution schemes are not meant to replace the courts in all cases. Whether a case should attempt to settle via an alternative dispute resolution mechanism is completely dependent on the result that the parties to it want to achieve, the importance of the dilemma, how a party wants to go about solving it and how willing the other party is to seek an agreement.
The desired outcome is often what drives a party to pursue ADR rather than the traditional court route. If the party wanted an order that something be done or stopped, compensation or a judgment from a court about what is right and who is wrong, they would take the matter through the civil courts system. If what is wanted, however, is a result such as a change in how a person or organisation behaves, a promise that a person or company will not do something, an apology or explanation, a mistake to be corrected, money that is owed to be paid or something to be fixed or replaced, parties will benefit from ADR.
An all-encompassing review of Scotland's civil courts system is under way—we can expect it to report in 2009. Although I do not suggest that we copy wholesale the recent reforms to the civil courts system in England following Lord Woolf's recommendations, I am pleased that the cabinet secretary has said that the Government is willing at least to consider those reforms, about which I know a little. Lord Woolf's approach to reform in England and Wales was to encourage early settlement of disputes through a combination of pre-action protocols, active case management by the courts and cost penalties for parties who unreasonably refused attempts to negotiate or to consider ADR. Evidence indicates that the Woolf reforms are working to the extent that pre-action protocols are promoting settlement before applications are made to court, most cases are being heard earlier and fewer cases are settling at the door of the court. In fact, most cases are now settled without a hearing ever taking place. However, costs have increased or have at least been front-loaded. In particular, costs are clearly higher for the parties involved in cases in which mediation has been attempted but agreement has not been reached.
Despite the encouragement of pre-action protocols, civil procedure rules and the funding code, the use of ADR in England has not increased as much as was anticipated. The voluntary pilot mediation scheme at central London county court had a take-up rate of around only 4 per cent before 1999. Between 1999 and 2003, when the effects of the Woolf reforms were beginning to be felt, there was an increase in the take-up rate for the scheme but a decrease in the settlement rates from 62 per cent to 40 per cent. It has been suggested that the Woolf reforms have led parties to mediate to avoid the cost penalties and to appear to co-operate with judicial direction but be half-hearted in their attempts to negotiate settlements. The reasons that are given by lawyers and parties involved support that theory.
The Scottish Conservatives support the view that there are methods to resolve disputes that involve the use of skilled advice but not necessarily in a court environment. We would be considerably interested if the Scottish Government were to extend the system of alternative dispute resolution schemes to cover commercial matters. People who are confronted with an issue on which they need advice should be able to access that advice as locally as possible. One method of ensuring such local access is to provide advice through the CABx, which advise on a range of topics, such as financial problems, family disputes, individual guidance and protecting consumers against incompetence by companies and other groups.
The Scottish Conservatives believe that what is most important is improvement in delivery of civil justice in Scotland. It should be evident beyond doubt how any changes that are made to the justice system will better serve the consumer.
Thank you, Presiding Officer. I am sorry that I have not filled up more of the time, but I have done my best.
No—you did just what I was planning on.
We should recognise that there have been a number of historic moments in Parliament this morning. Hearts supporters have something to sing about following the Celtic and Hearts game last night. I understand that it is the first time in Parliament's history that that has been the case. Moreover, Bill Butler has converted to being a new Labour moderniser—another conversion and another welcome aspect of the debate.
I ask Paul Martin to withdraw that comment, because I do not recognise a party called "new Labour". I believe that I am a member of the Labour Party, as is he.
I take that as read. I am sure that Peter Mandelson will welcome that qualification.
I also welcome the fact that ministers have amplified their support for alternative dispute resolution. Fergus Ewing and Kenny MacAskill are not well known for being involved in the arts of meditation, conciliation and arbitration, but we welcome their support all the same.
James Kelly referred to the number of surgeries that he has held as an elected representative. Those of us who have been elected members for a number of years will have had a number of disputes brought before us in which conciliation and alternative dispute resolution would have been the way forward. I remember disputes about council house sales from when I was a councillor. Members of the public wanted to settle disputes about land allocation, and that case was made on a number of occasions. I have also dealt with a number of cases that involve property factors. There are opportunities to ensure resolution much earlier in such cases.
The Labour Party would welcome clarification from the minister on how ADR will be promoted. That is important. Christine Grahame made a point well when she asked what the public understand by the term. How many of us had to do a Google search on it last night for our speeches? We can see from that that the public would experience difficulties throughout the country.
It is also recognised that provision of the different forms of mediation throughout the country is patchy. I had an offline discussion about that with Charlie Gordon, who made the point that the cost is sometimes prohibitive. In the Glasgow Housing Association example, it is £180 per day. The Government will have to provide additional funding to ensure that such disputes can be resolved.
The public would also be surprised to learn that there are opportunities for such arbitration to be legally binding—public information is required on that. Bill Aitken made a powerful point about the need to ensure that people who use alternative dispute resolution comply with the agreements that are reached at the conclusion of the process. It would be helpful to hear evidence on the percentage of parties who comply with such arrangements and on whether there are repeat offenders in respect of non-compliance.
James Kelly made a very good point about citizens advice bureaux and law centres throughout Scotland, which fulfil a valuable role in ensuring that our constituents are aware of the options that are available to them. Many CABx and law centres are undervalued, as is shown by the funding that has been made available to them. If we are serious about providing opportunities for alternative dispute resolution, we must ensure that they are given additional funding for that purpose.
The cabinet secretary said that he will bring forward proposals for a dispute resolution centre. I would welcome clarity about where the centre will be located and when it will be created. Perhaps Fergus Ewing can give us that information when he sums up.
A number of academic reports have stated that there is confusion about what is meant by ADR—a number of members made that point today. We would welcome leadership from the Scottish Government in providing clarity on the matter. There have been many debates and academic reports on the issue, but we need clarity and guidance.
The cabinet secretary would not expect to reach the end of the debate without hearing Labour members make the case for additional funding. Often, members of the public will not enter mediation if they believe that the costs will be prohibitive. I mentioned that in relation to GHA. Complainants will not propose mediation if they believe that they will be financially penalised as a result. We have to be clear that, in respect of the complainant, there are opportunities for costs to be avoided.
I understand that the matter is complex and that, often, complainants do not want to bring matters to conclusion through mediation. I have dealt with a number of constituents who were determined to have their day in court. That was how they wanted to make their case, and mediation was not an option for them. They were clear that going to court would give them an opportunity to amplify their concerns. The matter is complex, but we need a framework that provides opportunities for mediation. Pauline McNeill made the point powerfully that there has to be a way of enforcing the process if we want to ensure that people enter it.
In conclusion, there has been an unprecedented level of consensual debate this morning, except on Hearts football club. I cannot remember a debate with the Scottish Government in which there has been so much consensus. It means that the cabinet secretary and the minister do not have to come back to Parliament on the matter until they have specific proposals. I hope that, from today's debate, they understand what we want. We look forward to hearing their proposals. The debate is not the most exciting debate that we will have, but it is important to people who are involved in disputes. As James Kelly and others have said, it is also important for organisations such as Citizens Advice Scotland, which deal with cases at the front line and which require clarity on the matter as well.
Although I warmly congratulate Hearts on their success, I am struggling with the unaccountable exit from the competition of Inverness Caledonian Thistle.
That aside, I welcome members' contributions to the debate. The motion has received broad support. We recognise the need to develop a broad range of appropriate dispute resolution schemes as alternatives to going to court. We accept that such schemes can offer flexibility, quicker resolution, less stress and reduced expense for citizens.
Recently, the Cabinet Secretary for Justice and I had the opportunity to meet a number of figures who are active in promoting the case for Scotland to become recognised throughout the world as offering top-quality forms of alternative dispute resolution. I noticed that present today in the gallery were John Campbell QC—who, we remember, helped us through the Fraser inquiry, which we might loosely say was a form of dispute resolution—and Jane Irvine, the Scottish Legal Services Ombudsman. In addition, I met Brandon Malone and representatives of the Chartered Institute of Arbitrators, and the cabinet secretary met other distinguished lawyers who are determined to promote Scotland, with its own legal system, as a centre of excellence throughout the world. We want to promote Scotland not only as a place where people can do business easily but as a place where business disputes can be resolved using the high-quality legal minds, talents and experience that we have.
I make it clear that the Government, in some respects continuing the work that we inherited, wishes to take forward the process of reform. To tackle Paul Martin's point about the establishment of a dispute resolution centre, we argue that the first step is to reform the law. Until that is done, it would be premature to establish a centre. For avoidance of doubt, I state that we plan to introduce a draft bill for consultation. Today's debate has given us some useful pointers to the possible content of the bill.
I thought that, in the spirit of consensus, I would intervene and use up, perhaps, 20 seconds of the long time that is available to the minister.
On a serious point, I am glad that the minister clarified that the Government will introduce a draft bill. We welcome that. I think that we all agree that the law on the matter is pretty outdated, given that it is contained in an act from the 1800s or something. I know that Lord Dervaird has done some work on the matter over the years. Will the minister tell us, broadly, in what ways he intends to modernise the legislation? What changes will attract companies to come to Scotland and use our framework rather than use another country's framework?
I say to Pauline McNeill that I am actually not short of material. Like Bob Hope, I have plenty of it, although not all of it should necessarily be aired in public.
In answer to Pauline McNeill's question, I say that we think that the draft bill that Lord Dervaird produced is a useful model on which to base our proposals.
In response to Gavin Brown's point, I confirm that important work is being done on development of the code. The code needs to be improved to deal with certain problematic aspects. It is not being used to the fullest extent. We understand that the work, which is being done by the Chartered Institute of Arbitrators, will be completed soon—possibly this month. It will pave the way for us to move forward with draft legislation based on Lord Dervaird's proposals. As the cabinet secretary pointed out, some of the law on the matter dates back to 1695, so the case for modernisation is robust.
Our manifesto contained a commitment to work with the legal professions towards the establishment in Scotland of an international centre for arbitration. However, a centre that offers a range of methods of alternative dispute resolution might be a better option. That option is being investigated by officials. Numerous members, including Lord Foulkes, who is not here—perhaps he has gone to another place—mentioned the matter. Plainly, we wish a centre to be established. The idea has many benefits. There would be fees for use of the centre, fees for the arbitrators, legal fees for the legal practitioners, and spin-off benefits in that people who would come to Scotland would use hotels and other facilities. No decision has been made on the centre's location, but I gather that Edinburgh has been mentioned as making a pitch for it, although other candidates are free to come forward and make their cases.
The establishment of a centre would also provide a focus for the take-up of ADR, which is promoted by a wide variety of sources including CABx, lawyers, various people in public services, councils and their service points, and even MSPs.
The other day, I discovered somewhat to my surprise that I am about to take part in my 700th constituency surgery. Much of the work that MSPs do is in trying to conciliate, mediate and find solutions—we provide a sympathetic ear but we also try to resolve complaints that can often be extremely taxing and challenging.
There is a great deal of support for ADR, and many members have mentioned different aspects of it. Many of the most interesting contributions have come from the non-learned friends. Stuart McMillan was right to highlight that mediation can be far less expensive than court action or, indeed, ASBOs. He gave us some useful statistical information to prove his point.
We have also heard about the application of ADR to many circumstances, including family mediation. Let me make it clear that, at present, sheriff court rules entitle a sheriff at any stage of an action involving parental rights and children to refer a case to mediation. That is extremely important, and I understand that the Sheriff Court Rules Council has agreed that that principle—namely, reference to mediation—should be extended beyond family actions.
John Wilson mentioned medical negligence cases. Those are some of the most taxing and troubling cases that will concern any constituent. In them, they feel alone, vulnerable and as if they are in a David and Goliath challenge.
I should mention that every local authority must make available independent mediation for additional support for learning disputes under the Education (Additional Support for Learning) (Scotland) Act 2004. My experience is that there are few more challenged people than parents who are struggling to fight for justice for children who have special needs. It is an unequal and difficult struggle. If there is anything we can do to help them to feel that they are not in some sort of ghastly Kafkaesque plot, we should do so.
The minister might recall that I mentioned concerned parents. Will he assure us that the Government will monitor and review parental satisfaction and how the tribunals work, possibly after they have had a chance to bed in for a couple of years? The reports that members are getting about them are at best mixed.
That is a useful point. I was going to answer Margaret Smith's earlier comments by pointing out, in relation to supervision of tribunals, that the new Scottish committee of the Administrative Justice and Tribunals Council has been set up under the Tribunals, Courts and Enforcement Act 2007. It has the power to submit a report to Parliament if it has concerns about how devolved tribunals operate.
Bill Aitken spoke about the enforceability of decrees arbitral. Of course, it is a facet of arbitration that the parties voluntarily agree to it and consequently deny themselves recourse to other forms of resolution. I understand that the parties normally enter into a contract to be bound by the outcome of the arbitration. In that respect, they agree that arbitration should be binding. However, we are undertaking research to ascertain whether there have been problems with enforcement, which will inform the consultation process later in the year. In addition, the New York convention to which we adhere governs enforcements of awards in other countries, so Scottish awards can be enforced abroad and vice versa.
The debate has had its moments of levity, some of which I will touch on briefly. We heard somewhat unexpectedly about the British empire from Margaret Smith—I was not aware that the British empire was famed for mediation and conciliation throughout the world. We then learned from Gavin Brown, again unexpectedly, that Bill Aitken has a "fat wallet". Many of us did not know that the said article exists or if it does—I do not concede the point—whether it has been spotted in public any more frequently than the Loch Ness monster. I bow to Mr Brown on his research. It might be useful for Mr Aitken to help Christine Grahame, who is anxious to have a return trip on what she called "a journey of the willing" to Baltimore. Perhaps some financial assistance could be provided. Christine Grahame kindly invited the cabinet secretary and me to accompany her on that trip, but I must tell her that our ministerial diaries are full until 2011—or they certainly will be now.
Lord Foulkes made a pawky and persistently irrelevant speech, which I thought was an inadvertent advert for the abolition of the House of Lords—or at least the transfer of its proceedings to some remote cable channel for insomniacs.
In conclusion, I commend the motion to the chamber.
I commend members for managing to get that debate to overrun.