Interviews with leaders and entrepreneurs who have made significant contributions to the alternative dispute resolution field

Thursday, March 09, 2006

A MEDIATOR'S GUIDE TO SCOTLAND: A conversation with Ewan Malcolm, Director of the Scottish Mediation Network

An interview with Ewan Malcolm of the Scottish Mediation NetworkHi, Ewan, and welcome to Online Guide to Mediation. It's a pleasure to have you here today. Please introduce yourself to my readers--tell us what you do in the ADR field and how it was you got started.

Hello everyone – my name is Ewan Malcolm and I am the Director of the Scottish Mediation Network (SMN), based in Edinburgh, the capital city of Scotland, in the United Kingdom. The purpose of the SMN (which is a members non-profit organisation) is to promote the appropriate use of mediation and it aims to embed mediation in to the way that disputes and conflict of all kinds are handled in Scotland.

Before I was employed to set up the full time office of SMN in 2002, for 17 years I was a lawyer in general practice. I was a partner running one of eight offices of a medium sized litigation and private client firm.

My first training as a mediator was in 1994 when I took the place of one of my partners who could not attend a commercial mediation course. I realised that I had been adopting mediative approaches intuitively. The following year, I trained as a family mediator, as about half of my work at that time was in separation and divorce. Since then I have been freelancing as both a commercial and family mediator, dealing mostly with complicated and high value disputes. In 1999 I trained as community mediator and have since then been a volunteer with Edinburgh Community Mediation Service. I also work as mediation and negotiation skills trainer.

SMN does not offer mediation or training services as we direct enquiries to our members, so I find the work I do as a practitioner in my own time very valuable background for my role as the SMN Director.

My readers come from around the globe, although many of them (myself included) are based in the U.S. All of us are interested in learning about the practice of mediation in other parts of the world. Could you describe for us the contours of the mediation landscape in Scotland?

Mediation in Scotland is developing rapidly. Family Mediation has been part of the landscape for over 20 years. We have not-for-profit family mediation services offering free child focused available throughout the mainland and islands of Scotland, all federated to Family Mediation Scotland (FMS). As a compliment to this about 50 mediators who also work as family lawyers offer a service which includes the financial aspects of separation.

The other major field of activity here is Community mediation with the first service set up in the mid ‘90s. Pioneered in the last decade by the crime reduction charity, SACRO, we now have neighbour mediation services in 30 of our 32 local authority areas. There is a mixture of paid mediation workers and volunteers.

Civil/commercial mediation has been slower to develop as we do not yet have any rules of Court (unlike our neighbours in England and Wales) requiring the parties to consider mediation failing under threat of a penalty in expenses. One of our commercial mediation providers reports handling around 50 mediations last year. We have had only one in Court mediation service in Edinburgh Sheriff Court dealing with claims valued at less than £750; mediators volunteer their services.

Soon two new pilot services will be launched in Glasgow and Aberdeen offering mediation to all litigants in the Sheriff Courts there.

Workplace mediation has been very effectively used in a variety of organisations. Human Resources professionals seem very interested in how to integrate mediation as an option.

The Education (Additional Support for Learning) (Scotland) Act 2004 provides that “Every education authority must make such arrangements as they consider appropriate for the provision of independent mediation services” to handle disputes under the Act. Now the Act is in force, local Authorities are grappling with the selection of mediation services and are looking for assurance of quality.

Peer Mediation is practiced in about 30 of the 3000 primary and 600 secondary schools in Scotland. The SMN has a grant from a Trust to employ a part time development officer to support the progress of this important work.

Environmental and Planning mediators have worked hard in an Initiative Group set up by the SMN to develop a pilot proposal for the use of mediation the context of Local Plans. The Scottish Parliament is looking at this with interest.

Broadly, the training and approach of most Scottish mediators is facilitative, what ever background they come from. (Depending on the sphere of practice, there are few prior educational or professional restrictions on who may train as a mediator.) Evaluative approaches are generally discouraged, and purely transformative practice has yet to be attempted, as far as I am aware.

In addition to mediation of disputes our colleagues working in Restorative Justice have developed both youth and adult services that bring together victims and accused/offenders to mediate the harm.

There are many different approaches and schools of thought on how to prepare individuals to become mediators. How are mediators trained in Scotland and where is mediation taught?

Most Scottish based mediation training follows the model of 50 + taught hours to ready people for practice followed by a period of shadowing prior to lead or solo work. Most services both in the public and private sectors have Continuing Practice Development (CPD) programmers along with forms of practice support like supervision and peer consultation.

We aim to list all of the trainers working in Scotland on our map of mediation services. As yet, academic institutions in Scotland are not offering courses of study in conflict resolution and mediation.

Among the issues the mediation profession here in the U.S. has been struggling with are the articulation of qualification standards and development of models for best practices for mediators to assure public confidence in mediation services. What steps have been taken in Scotland to address these issues?

The Scottish Justice ministry has just begun to fund work in my office in the area of quality assurance. Our focus in this project is the standards of practice of mediators and the standard of mediator training in Scotland.

The fields of family and neighbour mediation have well established accreditation systems mainly with the UK College of Family Mediators (UKCFM) and Mediation UK (MUK). However, both organisations have to respond to the very different environments in England and Wales. Additionally, the distance to these organisations’ offices in Bristol in south west England make them even less accessible to those in Scotland, especially for those outside the Central Belt. Many Scottish services and mediators have indicated a desire to have a Scottish bases quality assurance organisation.

The areas of Commercial and court-annexed mediation have developed on the American free enterprise model with accreditation mostly granted by training providers. The SMN is in dialogue with the recently formed Civil Mediation Council based in England and chaired by Sir Brian Neil. There is a clear need for practice standards, especially if mediation is to spread across our Sheriff Courts.

Mediation has potential application to disputes in any part of Scottish society. It is essential that this emerging body of important mediation work is of the highest possible quality.

Colleagues at Maryland’s Mediation and Dispute Resolution Office (MACRO) are willingly sharing information about the development of Maryland’s Mediator Excellence program. Along with our links with the well resourced Netherlands’s Mediation Institute (NMI), who have Europe’s most advanced mediator registration and certification scheme, we are well placed to collaborate internationally.

We have launched a consensus building process outlined in the engagement paper which is downloadable from our website. Our expectation is that this process and system will become an example for the rest of the world.

There is no single regulatory body for all forms of mediation in Scotland. Regulation of training is not standard. Nor is there a standard set of qualifications for becoming and continuing to practice as a mediator. Unsurprisingly, this is confusing for people. If a Scottish mediation regulatory body were to be created and work, it would need to be credible, first in the eyes of the mediation community, then before the scrutiny of the outside world. It would need to measure up to modern tenets of independent regulation.

This is a sensitive area, so the work requires careful planning, skilful execution and constant communication. The amount of resource available will influence heavily the rate at which progress in the project is made.

The Scottish Mediation Network has built trust with virtually all mediation organisations in Scotland. It is in a unique position, if appropriately resourced, to create the space to host the discussions about building a regulatory structure of mediation in Scotland. There is a real opportunity to develop a solution for Scotland which could lead the way for the rest of the world.

Here in the U.S. many attorneys and judges have come to recognize the benefits that mediation offers litigants—speedy resolution, flexibility in negotiation, and autonomy in decision-making. On the other hand, some lawyers see mediation as a threat to their livelihood or question its efficacy. How does the legal profession and the judiciary in Scotland view mediation?

The law of Scotland is quite distinctly different from that of our larger neighbour to the south, England. Much of Scots law derives from principles of Roman law whereas the English tradition draws on the common law and reported cases. This difference, which was institutionalised when our Parliaments combined in 1707, has led, in my opinion, to a relatively conservative approach to change, especially from our judiciary.

Also, Judges here do not have any control of the budget for their courts. Until recently, the pressure of business on court time has not been perceived to be as great and as demanding as in other jurisdictions. This has resulted in little active encouragement of mediation from the bench.
However, this is starting to change. Our Court Rules Council is considering how mediation may be integrated into existing protocol. In mid 2005 our most senior judges devoted a 2 day conference to considering mediation.

As for lawyers, they are slowly beginning to understand the utility of mediation as an option for their clients. Once they experience the process, and get over the natural uncertainly of an unfamiliar way of working, they usually understand its usefulness. There will, I suggest, always be a few people who are more interested in personal profit rather than the best interests of their clients. However, most lawyers in Scotland are committed to their role of ethical representative so we are working to overcome their concerns base on principled caution rather than self interest.

According to its web site, the Scottish Mediation Network has set for itself an important goal: “to put mediation into the mainstream as a widely available and clearly understood first option for resolving disputes of all kinds in Scotland”. It’s a goal that undoubtedly all of us in the dispute resolution field share, regardless of where in the world we live. Please tell us what’s been done so far to achieve those goals and what steps you anticipate taking in the future.

In the last three years the SMN office has, with the support of a Big Lottery Fund grant, delivered four initiatives which will be the foundation stones for this further work. They are:

  • Establishing active connections with all the mediation services and mediation trainers in Scotland and beyond, in Europe and North America

  • Creating a website with a Map of Mediation that makes freely available information about all the mediation services in the country

  • Building consensus around Guidelines on the Practice of Mediation (Guidelines) which now serve as a baseline for the conduct of all forms of mediation in Scotland

  • Taking “Mediation into the Mainstream” Road shows to eight locations in Scotland.
The European Union adopted on 22 October 2004 a proposal for a directive of the Council and European Parliament on certain aspects of mediation in civil and commercial matters. It makes provision that member states will bring into force laws, regulations and administrative provisions necessary to comply with this directive by 1 September 2007 at the latest.

Article 4 requires member states to “promote and encourage the development of and adherence to voluntary codes of conduct…as well as other effective quality control mechanisms.”

The European Code of Conduct for Mediators was launched at a conference held in Brussels on 2 July 2004. The SMN had already devised and adopted its Guidelines which are consistent with the European Code. Compliance with these Guidelines is a requirement for all practitioner members of the SMN. The Guidelines are an integral part of the Specification for a clinical negligence mediation pilot launched by the SE Health Department on 1st April 2005.

Thank you so very much, Ewan. It has been a great pleasure to welcome you and to introduce you to my readers.