HM Insights

What does the court closure mean for my claim – considering alternative dispute resolution to avoid the backlog

Scotland's court system has been hit hard by the impact of the coronavirus pandemic. Almost all Scottish courts closed to the public on 25 March 2020 and only the most urgent of cases were processed throughout April.

Limited business is now slowly resuming in some courts but all areas of the law which usually rely on courts and tribunals to function – including family law, employment law and civil disputes - are facing months of disruption while the justice system copes with the backlog.

The anticipated surge in claims arising out of the COVID-19 crisis will only increase the pressure on an already creaking system.

For many cases though, there is an alternative to joining the long court queue. Alternative dispute resolution (ADR) processes are available and have a proven track record of resolving even the most contentious disputes. So what are the options?

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Arbitration

Arbitration is a real viable alternative to court at any time. An independent arbitrator will be appointed to determine the issues in much the same way as a sheriff or judge would. The benefit of arbitration is that it is a bespoke process, set up to suit the parties. It is often cheaper than court and, at the present time, the main advantage is that it can be done remotely to avoid delay.

Mediation

Mediation differs from court or arbitration in that the independent mediator will not make a decision for the parties; instead, a mediator will facilitate a negotiation between them, helping the parties to arrive at a resolution that is agreeable to everyone. Mediation can result in creative solutions which can then be recorded in a formal agreement between the parties. The mediation process can also be delivered remotely using technology.

Collaboration/Negotiation

Collaboration, or facilitated negotiation, is another process that can be used where parties agree to work together with the support of their solicitors to find a solution without resorting to court. It is particularly useful in less adversarial cases where both parties are focused on achieving a satisfactory settlement. Negotiations can be done via technology and the outcome will be a binding contractual agreement based on both parties' input.

Other options

Commercial disputes of a technical nature can be referred for independent expert determination rather than going through the court system. Disputes arising out of construction contracts may also be referred to adjudication. Both options can be pursued remotely with the decision maker relying on documents, written witness statements and virtual hearings if necessary but where a site visit is required this may present a difficulty until current restrictions are relaxed.

Time for ADR to shine?

The use of ADR through digital channels can enable civil disputes to move forward during this difficult time and may make the difference between parties reaching a satisfactory conclusion or being left in limbo indefinitely until the pandemic is over and the courts begin to catch up.

Depending on how long civil court business is suspended for, these "alternative" methods of dispute resolution may even become the norm, whether conducted in person or via video conferencing technology in the future. Greater use of ADR would help to relive the burden on the court system as well as giving parties greater control over the timing and final outcome of their dispute.

We're here to help

Our specialist dispute resolution lawyers can help you to make progress on your dispute now, working within the current restrictions and avoiding the inevitable delay that will accompany waiting for a court hearing.

Please contact us for more information about which process is best suited to your circumstances.

Useful links 

CORONAVIRUS LEGAL ADVICE HUB

DISPUTE RESOLUTION