Here's a new post from our convener, Scott Docherty, on the recent report from the Scottish Government justice committee in relation to the use of alternative methods of dispute resolution in Scotland.
Not long now until many of us weans both big and small dress up in costume for the spooooooooo-kiest time of the year, pretending as we do to be someone, or some-thing, else. So my question as we scream head first towards another ghoulish, candyfest Hallowe’en is this:
Is the Scottish Government dressed already in disguise, and underneath its mask lurks a big feartie?
Right, so first up for those not used to the Scots vernacular, if you’ve not worked it out already “feartie” means that you’re scared, and usually, that you’re scared without good reason.
Why am I asking if our elected representatives are big fearties?
Because I’m just done reading their justice committee’s long-awaited report on alternative dispute resolution in Scotland, and what strikes me the most about the report is that:
- despite the real opportunity we have to explore conflict engagement and resolution across all aspects of life, to reflect and continue our historical traditions as one of the most innovative nations on the planet, the recommendations and scope of the report go nowhere near far enough;
- in any event, I’ll probably be cultivating my wizened ear-hair by the time anything comes of the report; and
- by that point, conflict in Scotland will have grown way more complex than it is already, saddling our country unnecessarily with heightened issues in mental and physical health, equality, access to justice, self-determination, self-empowerment and more, underpinned by inadequately-tweaked systems of civil, criminal and administrative justice.
My purpose in writing this isn’t to goad, nor is it to imply. I need an answer, though, and really want to know just how committed my government is to its own strategic objectives to bring about a Scotland that’s wealthier & fairer, healthier, fairer & stronger, smarter, and greener. I want my government to achieve this aim. I want it to succeed. I want it to avoid the easy options, to apply genuinely joined-up thinking across the board, to refuse to bow to powerful lobbyists in the face of potential angst, to be brave enough and to lay out progressive legislative change that ensures for every single person in Scotland a future of opportunity.
what’s this report about anyway?
Have you read the report yet? Have a wee read of it here.
Amongst other things, to get a flavour of where the government is in this area at the moment, the report should be read alongside the Scottish Government’s review of Part 1 of the Children (Scotland) Act 1995 and creation of a family justice modernisation strategywhich has just completed its consultation phase, and the publications on justice by the Scottish Civil Justice Council and in particular its work on the digital strategy for justice.
Great bedtime reading, I tells ya!
So in this new report, which followed a period of consultation as is the norm, here are 8 quick quotes in it that stuck out for me:
- While the terms “alternative dispute resolution” and “ADR” are still in common usage in Scotland, and have therefore been used in this report, the Committee considers there may be merit in moving away from this terminology. Dispute resolution methods should not be seen as competing with one another…what is important is that people are able to make an informed choice about how to resolve their individual dispute. It may, therefore, be more helpful to think about “appropriate dispute resolution” or simply “dispute resolution” in its broadest sense, rather than “alternative dispute resolution”. [sidenote: I’ve long advocated for ‘ADR’ to stand for ‘appropriate’ rather than ‘alternative’ dispute resolution. Terminology is vital in cultural change, so I’m delighted to see this beginning to gain some traction.]
- The courts have a central role to play in ensuring the effective and early resolution of disputes.
- It is…not sustainable to continue to rely largely on volunteers for the current limited provision of in-court ADR services. The Scottish Government and the Scottish Courts and Tribunals Service should therefore consider how in-court ADR services, particularly for simple procedure cases, could be funded and provided on a more consistent basis throughout Scotland.
- Evidence from Craig Connal QC: I would be disappointed if we headed down a route similar to the one that has been taken south of the border, where there is a pretty firm drive to keep people out of the courts.
- Evidence from John Sturrock QC (and my golden quote of the entire report!): The proposition is that there is a benefit to wider society in having a justice system and compelling people to use the courts. I understand the proposition in theory, but we need to think about each individual case. Why should each individual litigant be compelled to use a court system for the benefit of wider society if that individual litigant could find an easier, more effective and quicker way of resolving disputes by negotiation? We must be careful about preserving a system for its own sake and recognise the needs of individuals and the value to them of having a more effective system.
- The Committee recommends that, save in domestic abuse cases, mandatory dispute resolution information meetings should be piloted. While this approach would not compel parties to participate in ADR, it could help to ensure that people are better aware of the options available to them and are able to make an informed choice about how to resolve their dispute. Additionally, where mediation does take place, a rethink of the support and resources available to people to help them prepare for ADR is needed if this course of action is to have the best chance of success.
- It is, however, crucial that any move towards greater use of ADR must ensure that victims of domestic abuse and children are not put at risk. There must be clear and workable exceptions for domestic abuse cases, without requiring victims to, for example, provide police reports as evidence. Processes to assess and monitor risks relating to domestic abuse and child protection must be robust and proper assessments undertaken before any use of ADR.
- While progress has been made to encourage greater use of ADR, availability and uptake across Scotland remains patchy. This report therefore suggests a number of changes which could address existing barriers to using ADR, including:
- a co-ordinated programme to raise public awareness of the benefits and availability of different ADR methods in Scotland, and ensuring that bodies such as citizens advice bureaux, local councils and GP surgeries, as well as elected representatives, have the resources to advise people on ADR
- a more robust duty on solicitors to advise their clients on the range of dispute resolution methods available to them, for example a requirement to keep records of this advice which can then be audited by the Law Society
- legal aid for other forms of ADR, as is currently available for mediation
- reviewed training for the judiciary to encourage a more consistent approach to court referrals to ADR
- consistent provision and funding of in-court ADR services, particularly for simple procedure cases.
OK, so the report comes up with a lot of good things. It recognises that something has to change in the area of conflict resolution. It holds that public awareness need to increase on the options available to those in conflict. It recommends pilots, training, shifts in funding. All positive, right?
So why am I still concerned?
Well, first of all I worry about how casually it was stated that “courts have a central role to play in ensuring the effective and early resolution of disputes” [my emphasis].
A central role?
The committee heard all that evidence about the benefits of early intervention. It spent all that time thinking about how we might ensure appropriate information and options in resolution in every single conflict. It’s published this report only a few days after this year’s ACE-Aware Scotland conference, in which our Deputy First Minister, John Swinney, heard about our innovative steps to become to the world’s first nation truly aware and proactive in relation to adverse childhood experiences. It’s carried out this apparently full-scale review of options to resolve disputes “outside the court system”, in the context of all the available research across the globe on brain development and operation during conflict.
And its conclusion maintains that court still has a central role to play in early and effectiveresolution?
Come on guys!
I get it. Court is necessary, at least in part, for some conflict. If you’re a victim of domestic abuse, you need protective measures from the civil and criminal spheres to ensure you and your kids are OK (although I do remain of the view that such victims shouldn’t be victimised further, by being denied the same information about options that everyone else would get were the mandatory information meetings introduced, and that with creative thinking they could be supported and guided more effectively instead of being presented with court as the only viable option to sort things out). Equally, if you’re charged with committing a crime, you need a defence lawyer to stand in court between you and the state. Etcetera etcetera.
Thing is, it’s really difficult to see things like this, institutionalised concepts, working in another way, right?
The easier decision to make is to say, OK, it’s not working, so let’s tweak it here and there in the hope it makes things better. In other words, a transition from poor to less poor, rather than an entire shift in trajectory. It’s easier to tweak, to make small incremental adjustments. And it’s waaaaaay more difficult to effect change from the bottom up, to take an entirely fresh look at a system and to begin again.
My concern, therefore, is the disconnect between my government’s strategic objectives and the work it might think is necessary to make them happen.
My concern is the paradox that you can fund and cultivate and achieve genuine early intervention in conflict whilst focusing most of your efforts on the very system its meant to avoid.
My concern is that training judges, giving solicitors yet more bureaucratic nightmares they won’t be paid for, paying for ‘in-court’ ADR services, making more legal aid available for ADR only for those who instruct solicitors, all of that stuff, will serve to prop up this theory of the court’s central role and will end up missing the point entirely.
More money and time wasted.
so what’s your ALTERNATIVE?
Here’s a little extract first from pocketconflictcoach:
…And so, here’s where you can take control of and begin to look beyond the conflicts you’ve perceived as your own. Here’s where you can begin to look at every single conflict in the world around you, from wars to terrorism to governmental negotiations to community disputes to employment wrangles to homelessness to crime to family division to playground scuffles and everywhere you hear raised voices, and think about what’s happening underneath. Because you know now, right, that lying beneath every single one of those conflicts are people. Just people. People with brains laced with all the bias and triggers and fears we’ve looked at, within their own virtual realities that if connected through more constructive civil discourse might explode those realities and expose the ultimate truth:
that we live in a world in which, putting aside all else, every single one of us needs support, love and understanding.
Here, therefore, is where you can begin to consider more forensically that if this is what’s really happening at the root of every conflict, if your brain has so much power, if all our brains have so much power, if we don’t tread carefully and each one of us finds ourselves living in a virtual world that totally misses what’s really going on, then how helpful is it in all honesty, in the face of conflict, for us to be directed at every turn towards adversity, towards war and court justice that often vindicates nothing but the brain’s inaccuracies, that gives our brains the outlet we need for our assumptions and our biases.
Have we been looking at the resolution of conflict the wrong way?
As we’ve looked at in this course, your instinct is to point the finger of blame elsewhere, because your brain tells you to do so. Your brain has been trying to protect you, directing movie after movie in your head that may well feel empowering but in reality are a complete fiction. So if we’re being told by our own brains to point that finger, is this how we came to design systems of democracy, government and civil, criminal and administrative justice that do the same? Given the amount of conflict we have in the world today, from mild irritation to adverse childhood experiences to domestic violence to terrorism to war, can we be sure that these systems we conceived long ago, before we evolved to understand more about our brains and our bodies, can we be absolutely sure that they’ve been working?
Or could we take a step back for a moment, and wonder whether, in all conflict and with what we know now, the beginning of the answer lies within?
My feeling is that to be truly effective in conflict, if Scotland genuinely wishes to become a leading innovator in appropriate dispute resolution, we need to scrap what we have now and start afresh. We need to begin at a young age, with an arm around the shoulder of every single person in conflict, protecting those who need it whilst educating and supporting the health and development of those who might otherwise have been lost within an institutional downward spiral. Here are those objectives my government wishes to achieve:
- Enabling businesses and people to increase their wealth and more people to share fairly in that wealth;
- Helping people to sustain and improve their health, especially in disadvantaged communities, ensuring better, local and faster access to health care;
- Helping communities to flourish, becoming stronger, safer places to live, offering improved opportunities and a better quality of life;
- Expanding opportunities to succeed from nurture through to lifelong learning ensuring higher and more widely shared achievements; and
- Improving Scotland’s natural and built environment and the sustainable use and enjoyment of it.
Let’s begin a conversation, then, about real change. Let’s look at those with whom we disagree, those who might seek to put us down or to fight their corner, and before we do anything else, try to understand them. Because we’re all the same, right? We’re all human. We’re all the products of our past experiences, and the research tells us that we’ve evolved, that we’ve moved up a level, that we’re equipped now with the tools we need to work out why we behave the way we do and what can be done about that.
So to begin with, peer mediation and conflict resolution training in schools as part of the Curriculum for Excellence. State Resolution Centres, in which advice and support is freely available for all types of conflict, designed to empower those in conflict to sort things out themselves. State-supported online conflict engagement services, with learning and development at their core. Improved restorative justice within the criminal system. Interests rather than rights-based systems, civil discourse and “mediating ways” placed at the heart of every element of potential conflict in society, from governmental negotiations all the way down to family separation.
I mean, aside from the odd exceptions, why do we still need judges and lawyers to make decisions on our behalf? I’ve been a lawyer and mediator for two decades, but can someone explain this? Given what we know now about the importance of our brains in conflict, why are we not talking about this more? Why isn’t my government consulting on it? Why isn’t it looking at all our crime, poverty, homelessness, inequality, ill health, and everything that’s going wrong in our society, and connecting the dots with our inadequate responses to conflict from birth, with all the research we have available today.
Is it because it’s afraid?
Is the Scottish Government actually a big feartie, and won’t look properly into the darkness under the creaking bed for fear of what it’ll find?
Is it not prepared to innovate in the face of institutionalised interests seeking to maintain the status quo only with minor adjustments?
…or will it stand up and truly represent the interests of those in conflict?
Who knows. Like I say, my hope is that it will. Meantime, I’ll be squeezing into my Buzz Lightyear costume and stuffing oodles of candy into my gob. But I’d love to hear from you. What do you think? If you’re not from Scotland, what’s your government doing about all this? What do you believe needs done?
Thanks so much for reading this too-long diatribe about change and conflict, and I’ll see you soonly with more on my little online project.