Migratory things on land : property rights and a law of capture

This article analyses English and Scots law relating to 'migratory things' - ie things which by their own inherent characteristics move to and for across tracts of land - both in terms of what property rights landowners hold in such things and whether the same may be legitimately 'captured' by the actions of others. In reviewing relevant authorities, the article reveals that the law governing this area is opaque and uncertain and displays inconsistencies in approach both within and between different migratory things across the English and Scottish jurisdictions. The analysis suggests that the limitations placed upon rights of ownership in migratory things represents a shot across the bows of general principles of landownership. The article concludes by suggesting that the current state of the law may give rise to a number of practical problems and proposes that there may be a need to reform certain aspects of the law in this area

A follow-up empirical analysis of Scottish construction clients' interaction with mediation

Although across many jurisdictions, mediation’s origins (in the modern sense at least1) often lay in the dispute areas of family and community matters, in recent years the process has begun to take root in the arena of construction disputes (for an international review of developments see Brooker and Wilkinson 2010). In contrast to traditional means of resolving disputes, it is contended that mediation may be a quicker, cheaper, less adversarial and more harmonious form of dispute resolution than traditional methods

Construction clients and mediation: a follow-up study of attitudes and experience

Construction disputes by their very nature are often complex, sometimes multi-party disputes, many of which are not suited to either adjudication or traditional forms of dispute resolution (these being potentially slow, expensive and divisive). The sheer complexity of construction disputes often leading to expensive, time-consuming and stressful paths being trodden through the traditional resolution terrain, creates a compelling case for the introduction of alternative approaches within this adversarial industry. The construction industry has become increasingly aware of the substantial legal costs it burdens itself with as a consequence of its high incidence of disputes. Moreover, this expenditure, which globally represents a substantial sum each year, is by no means reflective of the hidden costs of disputes, such as the damage to reputations and commercial relationships; cost of time spent by executive personnel; and cost of lost business opportunities. Over recent years, the Scottish Government and key players in Scottish commerce have emerged as advocates of mediation as a first choice method of settling disputes. The value of mediation has also been widely acknowledged worldwide, as evidenced by the number of jurisdictions in which the courts enforce obligations on parties to negotiate and adopt mediation to settle construction disputes. In most contexts, voluntary uptake of the process is low, however, and research into prospective client perceptions is particularly valuable. The principal aim then of this study was to explore construction participants’ [construction clients hereafter] awareness, attitudes and experiences relative to mediation, drawing upon quantitative and qualitative analyses of small and medium-sized contracting firms in Scotland. This was reflected in the main objectives of this research which were to evaluate the effectiveness of prevailing construction dispute resolution methods in Scotland; establish baseline information about the current extent of construction mediation activity in Scotland, determine the willingness of Scottish construction clients to shift away from traditional approaches to dispute resolution to mediation; and if they are, to ascertain the drivers towards the adoption of mediatory techniques, and if not the barriers to change

ADR and Scottish commercial litigators : a study of attitudes and experience

Reports on the findings of a study of the use of alternative dispute resolution (ADR) by commercial litigators in Scotland. Analyses survey responses from commercial litigators on a range of issues, including: (1) their own knowledge of, training in, and actual experience of ADR; (2) reasons why they might recommend or decline use of ADR; (3) the outcome of ADR procedures they have used; (4) ADR as a business opportunity; (5) the role of courts in encouraging ADR; and (6) reasons why the take up of ADR in Scotland has not been greater

Some thoughts on IBAS adjudication

Discusses the role of Independent Betting Adjudication Service (IBAS) adjudication and some of the associated issues surrounding recourse to that forum of dispute resolution in the context of legally enforceable betting debts. Explains the history and purpose of the IBAS and looks at how IBAS adjudication operates