Young Mediators’ Blog November 2018 - Paul Kirkwood

Tell us a bit about yourself and your professional background?

My name is Paul Kirkwood and I am a solicitor and commercial mediator. I have been on the Law Society of Scotland roll since 1993 and practised as a litigation solicitor until 2016. My main area of practice was in personal injury law but I also had experience in working in the field of employment law and in relation to commercial contract law. I am the owner of MNCRS - Mediation, Negotiation and Conflict Resolution Services - which provides a mediation service to all. To my knowledge I am the only registered solicitor in Scotland with a full practising certificate who practises solely as a commercial mediator.

What first interested you in mediation?

In late 2015 I decided that I wanted to change the nature of the work I was involved in. After 24 years of being a litigation solicitor in a specialist area I wanted to become involved in all kinds of legal conflict and I wanted to change from being an 'advocate' to being someone in the middle who tries to help both sides resolve their conflict in the most productive way, with the least destructive outcome. I left my firm when I noticed that the University of Strathclyde was doing a legal Masters degree (LLM) in mediation and conflict resolution (led by Charlie Irvine), which had a focus in some areas on mediation in the shadow of the law. At that point I knew very little about mediation and it seemed like a good challenge to me. This course teaches theory in mediation and also practice. It is an intensely practical course and I would recommend it.

How did you develop that interest?

From around September 2016 until now, I have been involved in mediations of all types. I have been heavily involved in commercial mediation initially “devilling” to a very experienced commercial mediator and subsequently co-mediating with her in a significant number of high-value commercial cases. I am often called in to help in the more complicated legal cases where there can be as many as 20 people involved in the mediation. I've also had significant experience in family mediation both with Calm mediators (registered with the Law Society of Scotland) and with non-Calm non-solicitor family mediators. I have had a significant involvement in court annexed mediation and I am a lead mediator both at Edinburgh Sheriff Court through the Edinburgh CAB scheme and with the University of Strathclyde mediation clinic (USMC) which provides mediation at Glasgow, Paisley, Kilmarnock and Falkirk Sheriff Courts.

I write frequently about mediation both in theory and in practice. You can find my articles on my blog paulkirkwoodmediator.co.uk and on my website www.mncrs.co.uk. I also provide lectures about mediation and I have a number of videos on a YouTube channel which you can access through my website above.

What has helped or hindered you in your mediation career?

It is difficult to get real in-the-field-practice of mediation in Scotland. The Masters course provides a practical training and assessment course over four residential weekends and 64 hours. This is intense and examined - it's also videoed! It goes a long way to helping you work out how to mediate - but nothing prepares you for the real thing like doing it!. You have to find a mediator or mediators who are willing to let you be their assistant, try to build a relationship with them over time, and then try to become a co-mediator with them. It doesn't happen overnight. There are very few commercial mediators in Scotland, so getting one to engage with you is not easy. Nevertheless if you persevere, you can get there, and I have.

What sort of mediations do you typically deal with now?

My main field of practice is in the field of commercial mediation in business disputes and in court annexed mediation through the Scotland Sheriff Court scheme for mediation.

What would you most like to see change in mediation?

I would like to see a Mediation Act. I think that would involve a step change in the culture of conflict resolution and the actuality of conflict resolution in Scotland. The Republic of Ireland has put into force a Mediation Act in January 2018. This requires solicitors to advise their clients properly about the availability of mediation and how it works. It requires them to prepare and sign a certificate saying that they have done so and that the client does not wish to undertake mediation at the outset of any litigation. Notwithstanding that the court is then able to invite parties to mediate during the course of the litigation; and in terms of the mediation if it is suggested that parties didn't want to engage in it at all, or did so in bad faith, then it is possible for the court to then penalise those parties in any award of legal expenses. That might sound radical but it is already what happens in England. In a recent court case there, a party who was found to have engaged in mediation in bad faith with a massive over exaggeration of the claim and a failure to properly engage in the mediation had their costs reduced by 68%. That effectively means that while their client 'won', in reality they lost because they were left with a very significant irrecoverable legal bill. The Justice Committee of the Scottish parliament reported on Monday, 1 October 2018. My submission in favour of a Mediation Act was included, with the suggestion that it may be one route to go down.

Paul Kirkwood, paul@mncrs.co.uk,Director MNCRS www.mncrs.co.uk