“You can’t always get what you want, but if you try sometimes, you might find, you get what you need.” Jagger and Richards

I don’t quite know how familiar this Rolling Stones lyric is to the Young Mediators readers, but it popped into mind when I was asked to provide a piece for this blog. A great song and a line that resonates with the concept of mediation. It got me thinking about what is needed to shift the approach in Scotland in relation to the use of mediation. What needs to be done to make the use of mediation more the norm? In considering this question, I have been reflecting on my own work life and the growing use of mediation during this time and offer three threads as to approaches that I think may make a difference.

The first of those is the need for lawyers to be creative in their thinking. Yes, we need to be able to advise clients of the legal outcome that can be achieved in relation to the disputes they find themselves in, but what is most important to clients is the desired outcome. Too often, lawyers do not ask the question "What do you want to happen?" Whilst this may appear to be obvious, the large chunk of my life dealing with disputes has made it abundantly clear to me that this is not always the case. I was lucky to have great role models as a young lawyer and encouraged to explore with clients their desired outcome not only in terms of what they said they wanted, but by digging beneath this to ascertain why they wanted this. Once the lawyer has a sense of what the client needs as an outcome, the mindset can be applied to the range of options available to assist the client. So, what needs to be done. We can, of course, point the finger at formal legal education and perhaps unjustifiably so. The real difference can be made in our role in training and mentoring lawyers in the workplace and the challenge for us all must be how we can do this most effectively.

The second thread that I want to touch on is the extent to which mediation features in the architecture of the legal system. I have a strong dislike of the terms, 'ADR' or 'Alternative' when it comes to the use of mediation and consider that such language has done much to dilute the potential benefits of mediation. For as long as this is viewed as an alternative rather than an integral part of the process, it will not be adopted. I should say that I consider the English term "Negotiated Dispute Resolution" to be a much more appropriate term. What do I mean by it featuring in the architecture of the legal system? Let me give some of my own experience. Whilst I count myself as very fortunate to have been able to work in a range of areas of dispute resolution and would probably find it hard to do so if I was to be starting in the legal world now, one of the areas that I have spent a great deal of my working life on is employment law. For those not familiar with this area, it used to be that an Employment Tribunal application, once raised, was a process that could not be interrupted. Once that train was on the tracks, short of illness or another catastrophe, it would not stop. Of course, we had and still have ACAS as a valuable conciliation resource and resolutions can be negotiated. Mediation was seldom considered and few of those working in the area had knowledge of it. Two things changed which irrevocably shifted how mediation was viewed. Firstly in 2006 the then President of the Employment Tribunal System, Colin Milne, introduced a Practice Direction to the effect that cases could be sisted for mediation. This was a major shift which signalled legitimacy of mediation and brought it squarely into focus for employment lawyers. No longer could it be denied that this was something that existed outwith the system. The next change was in 2009 when the same President announced a system of Judicial Mediation whereby a number of judges would be trained to offer mediation in complex discrimination cases. That has evolved over the years and could certainly be the subject of a more substantial article. What this served to do was to dispel any doubt that mediation was some sort of alternative process but rather was an integral part of the justice system. No longer could a practitioner say that this was something they didn't need to know about, but rather all employment practitioners speak of mediation in the same way as they speak of a Tribunal Hearing. So, from a very subtle shift in allowing sisting for mediation, there has been a significant change. Yes there can (and should) be significant changes in the justice system, but the challenge is what smaller and more subtle steps might be taken to change the way mediation is viewed? A lot can be taken from the Employment Tribunal experience.

The final area I want to touch upon is the professional duty that rests on all solicitors in Scotland. Law Society Guidance B.1.9 sets out that:

"Solicitors should have a sufficient understanding of commonly available alternative dispute resolution options to allow proper consideration and communication of options to a client in considering the client's interests and objectives.

A solicitor providing advice on dispute resolution procedures should be able to discuss and explain available options, including the advantages and disadvantages of each, to a client in such a way as to enable the client to make an informed decision as to the course of action and procedure he or she should pursue to best meet their needs and objectives, and to instruct the solicitor accordingly. A solicitor providing advice on dispute resolution procedures is also expected to be able to identify where alternative methods of dispute resolution may not be in the best interests of the client."

Clear? Well, yes it is clearly set out but what do we as a profession need to do. And no, I don’t like the use of the word "alternative".  First of all, we need to ensure that the lawyers we work with actually understand what mediation entails. We cannot assume this has been done at University so the duty rests with every legal firm to ensure this is done and, on an individual basis, when training and mentoring lawyers it behoves us to do so. Whilst we must ensure that there is knowledge, that in itself is not enough. Rather, we must ensure that those we are managing and working alongside actually do this. We have a professional duty to ensure that this is done and must call out colleagues on whether or not they have truly advised in terms of this guidance. I do fear that this guidance is viewed by many in the profession as "optional", dare I say it "alternative" or not even viewed at all. So, we can all do something to police use of this guidance and in time there may be a shift in culture.

In conclusion, having spent the biggest part of my life working in the area of dispute resolution, I can say that there have been significant, albeit slow, shifts in how mediation has been viewed and used in the resolution of disputes. There is a  need to get rid of the "alternative" epithet and a need to push for legislative change, but there are small steps that we can all take to advance the use of mediation. Adapting the lyrics a little, “You can’t always get what you want quickly, but if you try sometimes, you might find, you get what you need.”