David Clarke interviews Turcan Connell Associates, Paul Forrester Smith and Lynn Richmond on reaching agreement in dispute resolution, at Princes Exchange, 1 Earl Grey Street, Edinburgh, EH3 9EE.

Paul Forrester Smith and Lynn Richmond discuss reaching agreement in dispute resolution.

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DAVID CLARKE

 

Hello and welcome to the Turcan Connell video cast on Dispute Resolution. I’m David Clarke and I’m here with Paul Forrester Smith and Lynn Richmond and we’re going to be talking about the various ways to reach agreements. Paul, people think in Dispute Resolution its all about litigation lengthy litigation and is that really the case?

PAUL FORRESTER SMITH

Unfortunately David that can sometimes be the case and it very much depends on the individual circumstances clients find themselves in. One of the important things that we do here at Turcan Connell is to address the client’s needs and concerns and to assess what the most appropriate way forward might be for them. That might be court proceedings, there might be a need for urgent court orders, for instance if somebody selling property or disposing of assets. Or there might be a negotiation or mediation or arbitration might also be options for the client. It all depends on the individual circumstances they find themselves in.

DAVID CLARKE

So Lynne, a lot of other countries are actually imposing on people that they have to go through some kind of dispute resolution rather than going to court, is that the same situation in Scotland?

LYNN RICHMOND

Yes there has certainly been a movement towards compulsory mediation in a number of different countries. As things currently stand that’s not the case in Scotland, in England it’s much more proactive and encouraging parties to try and resolve their disputes out of court through mediation. In Scotland it’s not compulsory but the courts have been more proactive recently in trying to get people to engage in mediation or at least discussion before raising court action, but as things stand it’s not compulsory.

DAVID CLARKE

Support, what would say are the advantages and disadvantages of mediation compared to litigation for example?

PAUL FORRESTER SMITH

The principle advantage of mediation as a dispute resolution outcome is that it is a confidential process it’s likely to be cheaper and quicker than a court resolution, it does however relay on parties having a willingness to discuss matters openly with the mediator and with the other side, it often also involves a disclosure of certain information to the other side that they, although it’s confidential they may then have some tactical advantage. People sometimes perceive agreeing to mediation as a sign of weakness or the other side might see it as a willingness to settle, those are the sort of pros and cons of the process that have to be weighed up with clients as we progress.

DAVID CLARKE

So Lynn, where does arbitration feature in this process?

LYNN RICHMOND

Well arbitration is a much more formal process more looking at court procedure, it usually arises if parties already have a pre-existing contract so they’ve already agreed prior to the dispute to go to arbitration in the event of any issues arising. Parties can still agree to go to arbitration as and when any dispute arises, but usually its agreed in advance. Certain industries have their own procedures for mediation as well for example renewable energy or constructions who have distinct processes that are slightly different to the standard meditation through the arbitration act.

DAVID CLARKE

So is there still a place for litigation?

PAUL FORRESTER SMITH

David there will always unfortunately be a place for litigation. Sometimes clients find themselves in situations where there’s a need for urgent court intervention and that is not going to go away anytime soon.

DAVID CLARKE

Paul, Lynn, thank you very much. So for more information on how Turcan Connell can help you with dispute resolution go to the website, turcanconnell.com or check us out on Twitter and LinkedIn.