Arbitration Just Got Easier

One of the most common myths about civil lawyers is that they "pan out" cases, on the basis that the longer something takes to resolve the more the parties involved can be charged. In reality, the interests of solicitors - as well as that of their clients - dictate that they provide legal representation that offers the best chance of satisfaction with relative swiftness. It is on this policy that reputations are earned and is the means by which reputable, small- to-medium practices prosper.

Many solicitors' firms boast a number of competent and experienced practitioners with a good track record in successfully acting for clients in the courts, when such an action becomes absolutely necessary. However, this is usually seen as the option of 'last resort' and a good solicitor will always strive to avoid involving the client in the stress of going to court, although the final decision on whether or not do so, of course, rests with the client.

It is for this reason that the Arbitration (Scotland) Act 2010, which became law in June of this year, is to be welcomed. Arbitration - as an alternative to the established courts - has been an option open to litigants in Scotland for many years, but it appears that the new Act will have the benefit of making the process much simpler and more transparent than before as well as giving increased powers to arbiters so that rulings can be executed as intended.

Typical uses of arbitration up to now have been cases such as construction disputes (either involving a property-owner and contractor or between neighbours) or former partners in a business who subsequently fall out over working practices, division of assets, and company strategy. These disputes tend to involve people for whom the court process could be extremely expensive - perhaps ruinously so - and for whom arbitration is a welcome alternative. Nevertheless, arbitration will work only when there is goodwill - and a genuine desire for compromise - on both sides. Sadly, some litigants (whatever the advice of their lawyer) dig themselves into such an entrenched position that going before a judge becomes the only option.

Arbitration, perhaps even under the terms of the new Act, should not be seen as a panacea. There are still costs involved (e.g. the arbiter's fee for a start) and in less complicated actions (where either the pursuer or defender has a clear chance of success) going to court may be the most advisable course of action.

On balance, however, the Arbitration (Scotland) Act 2010 is a welcome development. Like most new legislation it will take time to "settle" and the extent of its benefits will only be proven with time. Meanwhile, all good solicitors will keep a close eye on its progress so as to provide clients with practical, cost-effective, and up to date legal advice.