April 6, 2004
Mediating in the Shadow of Civil Procedural Laws: Away from 'nursing wrath' towards nurturing choice
Speaker: Professor Margaret Ross, University of Aberdeen
Time: 11:00 a.m
Location: Wynne Courtroom, Room 100
Scotland has a mixed civil and common law tradition that generates scholarly interest as a model for reconciling the legal systems of the UK and continental Europe. Scotlands procedural laws have features of common law systems but they are defined in broad rather than detailed terms, rely to a large extent on lightly structured judicial discretion and do not provide for discovery. The litigation culture therefore allows secrecy and surprise, which can foster polarised positions, often until the 11th hour of facts emerging at trial. In this culture, mediation has seemed alien to some Scottish lawyers and their clients, wary of disclosing information before trial. Yet Scottish parties have taken control of their disputes in the past, favouring arbitration over litigation from as early as the 12th century, and spurning to this day detailed arbitration laws in favour of party autonomy in setting the procedures. Recent research reveals that Scots desire practical, accessible and effective methods of resolving justiciable problems. This lecture examines what conceptual linkages can be drawn between the choices and risks that are found in procedural laws and the choices and risks involved in mediation, and explores scope for their alignment to enhance understanding and choices about mediation in Scotland and elsewhere.