Recently, while preparing for a somewhat complex construction mediation with multiple issues, I rediscovered an older article, “Using a ‘Scott Schedule’ in Arbitration” by the Honourable Neil Wittmann, K.C., which I link to with his permission.
While the article notes that this schedule is touted as an instrument of efficiency in litigation, it makes the case that it should also be used more in arbitrations, especially where multiple issues are involved.
I would suggest that a Scott Schedule is also an extremely useful tool in complex private mediations with multiple issues and heads of damages.
As noted by the former Chief Justice of the Alberta Court of Queen’s Bench:
“When used in a Court, it is intended to particularize each individual claim so that it may be identified with certainty by the Court, the parties and their witnesses, in terms of the amount asserted by each party and the submissions of each party in relation to each individual item. It can produce areas of agreement, as to the description of the item or issue, the amount in dispute and can narrow the issue on any item.”
He also sets out an example of one potential format of a Scott Schedule.
An example of one such format can be seen in Justice Wittmann’s article.
A cursory review of this format shows how it could assist a mediator and the parties to better understand the starting points of their respective claims and differences, and continue to be used and updated in attempting to achieve a principled resolution of those differences as the mediation progresses.
Then Associate Chief Justice John D. Rooke touted the benefits of Scott Schedules in judicial mediation in a presentation to the Canadian Institute for the Administration of Justice:
“In my view, a Scott Schedule is very useful. Its purpose is to chart the matters in issue and to compare the ‘positions’ of the parties with respect to those issues. They may be merely $ amounts or in some cases they may be more detailed positions ... I try to put all the parties’ positions on one comparative page so I can quickly understand where are the differences between the parties and where there may be agreement (early on or throughout the mediation process). ... I try to give the Scott Schedule to the parties a few days before the mediation so that they may use it for their own purposes and that we can work from the same ‘score sheet’, that is, Scott Schedule, although, of course, the ultimate intent is to try and get an agreement on all of the issues, or as many as possible. ... Later, I will use the same document, the Scott Schedule, as revised and updated during the course of the mediation, to form the memorandum of agreement between the parties if a full and complete (or even a partial) settlement is reached.”
I would add my voice as one who also believes this is a valuable tool for achieving resolution of complex disputes, not only in litigation, arbitration and judicial mediation, but also private mediation using a private mediator.