Scottish Legal System and ADR

I am concerned that ADR is to become part of the CPR Rules in the judicial system for Scotland in October 2024 according to the Scottish Mediation Network.    I do not consider the courts should participate in ADR which effectively privatises the dispute and engages in gagging clauses thereby hiding the issues.  Also ADR is about "compromise" not "justice" and effectively is access from justice.  When the parties intend to litigate and issue proceedings there is a raised presumption that they are issuing proceedings in the "public" domain not the private domain.  It is necessary that cases go the  distance to trial otherwise society stagnates.  Case law and judgment enables society to update itself and progress.  There is a difference between case law that merely reiterates what the law is and case law that challenges the status quo to what it ought to be.  ADR prevents progress in society and compromise and justice are two distinct entities, the former is individualistic and the latter is universal.  That does not mean that ADR cannot exist in a democracy, it just does not fit in with public institutions as it effectively privatises them.  In that regard ADR should be outlawed from  use in public institutions such as the courts.

Also from my knowledge ADR in its American form  as promulgated by Bill Cllinton incorporated in the Woolf Reforma to the Legal System of England and Wales upon  which my research is based establishes Jewish hegemony on the topic of ADR and that a deliberate act of spin was done by the misleading of parliament that ADR is access to justice when it is access from justice and access to compromise.  I have no doubt that this current incorporation of ADR in  the CPR  Rules is more of the same.  The co-conspirators in misconduct in public office were Sir Tony Blair ex-PM; Lord Derry Irvine of Lairg, Lord Chancellor; Lord Mackay of Clashfern, Master of the Rolls along with Lord Woolf as Lord Chief Justice - all were involved in spin and as judges must be deemed to  know what they were doing was wrong..

ADR has several models namely the Japanese model - to save loss of face; the Jewish/American model - its cheaper and quicker than litigation or arbitration; the English and Welsh model - a coercive regime and my model the competition model which Lord Gill adopted for the Scottish legal system as the Gill Report.  With the new consultation the Scottish legal system  is going down the route of the Woolf Reforms to the English and Welsh legal system, ie the coercive regime model.

The Scottish Mediation Network says "... and to come into force on 1 October 2024, a        remarkably rapid process. The relevant    statutory instrument is the Civil Procedure (Amendment No.3) Rules 2024 SI 2024 No. 839 (L.11). 1. What are the Amendments in their  Final Form? The full text of the relevant amended Rules (which are CPR 1, 3, 28, 29 and 44) will not appear on the official CPR website until they come into effect in October 2024. To summarise the three main areas of change: 1. The first and most striking are the         insertions into CPR 1, where the overriding objective of civil justice is enshrined, and against which judges often measure the     exercise of discretions given to them. The     familiar objective – “enabling the court to deal with cases justly and at proportionate cost” – is said to include “so far as is       practicable” such matters as equal footing, speed, economy, appropriate resources, and rule compliance. Now it is expanded to       include “using and promoting ADR”[1]. For use and promotion of ADR to have become an objective of civil justice is startling indeed [2]. CPR 1.4, dealing with the court’s duty of active case management, is now said to     include “ordering or encouraging[3] the    parties to use an ADR procedure if the court considers it appropriate and facilitating the use of such procedure[4]. 2. The second set of amendments relates to clarifying the court’s management powers over ordering ADR, set out in CPR 3, 28 and 29. CPR 3.1(2)(o) and (p) now read: “(o) order the parties to participate in ADR; (p) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective,     including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.” CPR 28 (which deals with matters to be dealt with by directions in fast track and intermediate track cases) now includes “whether to order or encourage the parties to participate in ADR”[5]. CPR 29 (which deals with case management in multitrack cases, so all litigation of        significant value and complexity not covered by other Court Guides) requires directions hearing in every case and now provides: “(1A) When giving directions, the court must consider whether to order or encourage the parties to participate in ADR[6].” This latter provision is expressed very strongly. “Must” is not a frequently used verb in the CPR. 3. The third instance of amendment relates to the costs provisions in CPR 44, in which the way litigation is conducted is identified as a possible basis for sanctioning unreasonable behaviour. The conduct of parties is now said specifically to include: “whether a party failed to comply with an    order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution proposed by another party [7].” Note that the word “participate” in the     original draft has been changed to “engage” as a result of the consultation. CMC/CEDR/ Ciarb pointed out in their response that “participate” might allow an intrusive judge to feel entitled to assess the nature of a    party’s participation during a mediation      behind the veil of privilege and confidentiality and suggested “failed to agree to participate” as an alternative. “Engage” connotes “initial engagement” and answers the point.         Arguably, this amendment encapsulates   settled law since 2002 set out in such court decisions as Dunnett v Railtrack and indeed in Halsey itself. ...".

I have written to the Lord Advocate and Justice Secretary to raise my concerns as well as Kate Forbes, Douglas Ross, Emma Roddick, Tim Eagle, Jamie Halcro Johnson, Ariane Burgess, Rhoda Grant and Edward Mountain as my 8 MSPs to see if I can get a debate going in Parliament.  Perhaps you could support me by raising the matter of ADR in the Scottish Legal System with your MSPs at www.writetothem.com.