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THE courts of law are one of a range of methods of dispute resolution in a modern society – one which usually should serve as a very effective last resort. That proposition seems to be accepted by many people in many jurisdictions (including our own). However, it appears to some that the recent review of civil courts has taken a rather different view, in its conclusion that access to the courts is a fundamental right.

I think we are increasingly aware that courts are at one end of a broad spectrum. Most people with a problem, legal or otherwise, will neither wish to nor be able to use them. A substantial majority of civil and commercial cases that come into the court system are not decided by a judge. Are the energy and the financial and other resources dedicated to that end of the spectrum proportionate? Can these cases be sorted much more quickly and cheaply?

If a substantial proportion of cases in the judicial system are resolved without judicial determination, should people be encouraged to try proven means to expedite that resolution, before being allowed to use or continue to use publicly funded courts? Nobody suggests settlement can be compelled or that people's right to go to court should be removed, but there are legitimate ways to address many cases in a more economically efficient way.

For many, litigation of any sort tends to be unattractive not just because of expense or delay, but because the adversarial process is not ideally suited to the needs of the modern era and is not what most people want. Control, cost management, creativity and certainty are important.

This could also be about giving power back to the parties – so the process belongs to those whose problem it is, not to advisers or judges. It is perhaps about democratisation of the problem-solving process. This might have a strong resonance with many Scots.

The biggest risk for the courts in Scotland might be that they simply become less relevant as more people with differences, disagreements or disputes turn to flexible processes which offer a more creative, forward-looking option.

This is not to say courts are redundant; far from it. In those few cases decided by judges, excellence, speed, value for money and clarity and fairness of procedures will be critical. But for most people, the goal is likely to be accelerated – and more collaborative resolution of problems. This is still – or can be – about legal rights but it is also about a host of other interests, relationships, needs and issues. In negotiated resolution, law is only one feature among many and not, in many cases, the dominant one unless we make it so.

The Gill Review encouragingly gives examples of mediation in many parts of the world. It is a mainstream tool in England, with senior judges on record as supporting it and the government announcing substantial cost savings as a result of its pledge to use it.

What about Scotland? We must be careful before concluding that the review is bringing Scotland on to an equal footing with other legal systems. We remain behind others in some respects and the review, perhaps understandably given its remit to examine the civil courts rather than civil justice, has not given us the impetus we might have hoped for in developments in problem-solving, particularly mediation

The extra edge can be provided in the help that courts can give in Scotland as they have done in many other jurisdictions to encourage greater use of mediation. Relatively straightforward changes could be made now to enhance the role Scottish courts could play.

Active, well-informed encouragement by courts and advisers would enable the judiciary to acknowledge formally the role mediation can play in resolving disputes, to incorporate consideration of it as an option into standard case management processes and routinely recommend it to litigants in all suitable cases.

Rules of court or practice directions could be introduced which would enable this to happen, with a requirement that pleadings, notices or certificates specify that consideration has been given to mediation by the parties.

Aligned with this, professional rules would require all options to be put to clients by legal advisers in a meaningful, informed way.

The Scottish Government can assist by implementing procurement guidelines promulgated a few years ago, and including mediation clauses in its own agreements – and issuing a pledge to use mediation similar to that in England.

Perhaps paradoxically, I think we are well set in Scotland to embrace the new problem-solving culture. Scottish lawyers have a more natural inclination to co-operation and negotiation than in many jurisdictions.

We are seeing mediation develop here regardless of the intervention of the courts in litigious and non-litigious settings. In our business alone, we have undertaken well over 350 mediations in recent years across a wide range of sectors, often prompted by clients who have been exposed to what works elsewhere.

I sense we are moving into a new era in dispute resolution; there is a shift towards a post-litigation culture around the world. Increasingly, people are seeking and will find different ways of dealing with disputes, including those in which they use an impartial mediator. Use of traditional physical courts will tend to decline, and litigation as we know it could wane. Non-litigious dispute resolution, including mediation and negotiation, will expand in its many forms. Online dispute resolution is already significant for millions using eBay and other web-based services.

I am acutely aware of the charge of special pleading directed against those who appear to argue for that in which they are perceived to have a stake or interest. That said, nearly every day we read of initiatives in other jurisdictions to promote the use of mediation in civil and commercial matters. In Scotland, we could be in danger of missing an opportunity to be a part of that.

If we wish to survive and thrive, we need to acknowledge that we are living in a rapidly changing world, where traditional ways of thinking and doing things are being challenged. What has changed will not change back.

That has implications as we think about – and measure – what clients and others expect of a modern civil justice system and the role of mediation within it – and indeed about the role of courts.

• John Sturrock is chief executive of Core Solutions. A longer version of this article appears in the current issue of Scots Law Times.