Coinciding with the lockdown imposed across the UK on the 23rd March, all Courts across Scotland were closed to routine business. Hub Courts were assigned for each Sheriffdom - across the ten Courts of Tayside, Central and Fife, only two hub Courts were designated, and those two Courts are dealing only with designated "emergency" business, for example dealing with those arrested and held in custody, and applications for protective orders for either person or property, where the solicitor has been able to satisfy the Court that there is sufficient urgency.
What this has meant is that all routine business, in every Court across Scotland, has been paused, and either sisted (frozen) or has been continued until late summer.
All trials, children cases, divorces,
debt recovery actions and other litigations have been stalled. At the time of writing, there has been around ten weeks of court business being stalled. Any one who has been in our Courts, whether as a witness, juror or a party to an action knows how busy they are. The Scottish Courts and Tribunals Service are working to try and find a way forward to get our Courts open and functioning again, but that is clearly not going to happen imminently. There has been some limited progress towards hearings, particularly in the Court of Session, being dealt with remotely by telephone or video-conferencing, but that is very much the exception rather than the norm. Physical distancing requirements are going to inevitably impact the number of cases that can be dealt with at any time, and all this means that our already pressurised Court system will face additional pressures and delay, even once it is able to "open" again.
So what does this mean for those involved in disputes? Unless a case is designated as a high priority by the Court, it is likely that cases will be dealt with in chronological order, with the Sheriffs and judges dealing with the oldest cases first. That will mean substantial delays in being able to have a determinative hearing, and where lives are on hold pending such determinations, that can seem intolerable.
There are other options, however. Alternative Means of Dispute Resolution (ADR) has been gaining traction over the last few years, and the present restrictions on all of us force us all to look at alternative ways to help our clients, when the traditional routes are restricted. Many of the ADR methods can take place, or at least be commenced, remotely, using video conferencing technology, or even over a telephone call.
Mediation can be used both in family breakdown situations, but also in commercial disputes. A trained mediator will, after an initial intake discussion, set out joint or round the table (virtual or otherwise) sessions to tackle the issues at hand, working towards an agreed solution. Macnabs have worked with a number of specialised mediators, and can recommend
Relationships Scotland and
CALM mediators for any
family law issues, and
Core Mediation for commercial disputes.
The
arbitration process is designed for disputes and to secure a resolution where an independent decision maker is needed. Arbitration can take place remotely, and allows parties to determine a bespoke procedure (and timescale) that suits them, to choose their decision maker (usually an accredited expert in their field) and allows the process to be entirely private (which can often be crucial for reasons of commercial sensitivity, or indeed personal preference). The cost of the process can be determined in advance, and an arbitration has the potential to be concluded quickly. Macnabs have been involved in a number of arbitrations, involving both property disputes, regulatory issues and family law decisions. Ruth Croman has recently been accredited as an arbitrator by FLAGS (
Family Law Arbitration Group for Scotland). Further information about arbitration in family law cases can be found on the
FLAGS website and more generally in commercial disputes at the
Scottish Arbitration Centre website.
Collaborative Practice can also be of use in a family law context. This process involves parties committing to a process which specifically excludes resort to a Court action, and whereby a negotiated settlement, bespoke to each family context and dynamic, is achieved by a series of round the table meetings, avoiding protracted correspondence. While socially distanced meetings may well be a challenge in the present time, the process can be set up and operate remotely via video conference.
ADR can assist our clients to move their cases forward, when traditional litigation is stalled. It is worth bearing in mind that, subject to the agreement of both sides, cases caught up in the Court system can utilise arbitration or mediation while the action remains sisted. It may well be an alternative worth exploring!
