John Sturrock KC

The words I quote above are those of leading New Zealand mediator, Mark Kelly. Kelly has done mediation and his own country proud by compiling an authoritative study of the approach taken to mediation by what he describes as the “senior courts” in Australia, Canada and England and Wales. He has found that, in his own country New Zealand, mediation is now very common. He cites the many statutory and contractual references to mediation. There will, he says, be thousands of employment and family mediations in New Zealand every year and notes that it has been estimated that there are 800-1000 commercial mediations a year in his country. (New Zealand has a comparable population to Scotland of 5.3 million people.)

And yet, Kelly says, at the highest levels in New Zealand’s dispute resolution world, in the “senior courts”, mediation is still not taken as seriously as it should be: “The existing framework in New Zealand’s senior courts does little to encourage mediation. We are an outlier in this compared to peer jurisdictions.”

He quotes research by Morris & Shaw who state: “The traditional New Zealand Courts possibly play the weakest recommendatory role [in connection with mediation] in the English-speaking common law world”.

The important qualifier here may be “common law world”. New Zealand may not be alone in the English-speaking world as a whole.

He tells us that the senior courts in Australia, Canada and England and Wales all have greater powers to encourage, or order, mediation than the courts in New Zealand. In Kelly’s view, there is an access to justice opportunity here. Giving New Zealand’s senior courts such powers would have the potential to get more cases resolved earlier and at less cost, surely a desirable outcome he suggests.

Kelly notes that some change is coming in New Zealand, including that the objective of the High Court Rules is to be amended. Whereas it is currently provided that: “These rules shall be so construed as to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application”, it has been recommended that the word “determination” be replaced by the word “resolution”, expressly to encourage mediation.

Kelly makes a plea for enhanced communication between mediators, lawyers and the courts (including Rules Committees) about the place of mediation, particularly in senior courts cases. Interestingly, he notes a New Zealand Law Commission Report recommending that: “a multi-disciplinary working group of mediation practitioners, lawyers, policy-makers and others should oversee the implementation of court-mandated mediation”.

As Kelly notes, it is a privilege to be able to help people resolve their disputes, a privilege that mediators do not take lightly. He calls on mediators to highlight and enhance what they do and to take further steps to ensure that mediation has the trust and support of other stakeholders that it deserves.

So much of this could apply to Scotland. Mark Kelly gives us much to consider.

John Sturrock KC is a mediator. This article first appeared in The Scotsman.