The Justice Committee of the Scottish Parliament has issued a report on alternative dispute resolution (“ADR”) in Scotland. As well as suggesting changes to address existing barriers to using ADR, the Committee suggests that mandatory information meetings and consideration of legislation similar to the Irish Mediation Act should now be explored as "more fundamental changes which would facilitate a step-change in the uptake of ADR in Scotland".
Justice Committee Report
On 1 October 2018 the cross-party Justice Committee of the Scottish Parliament issued its report, “I won’t see you in court: alternative dispute resolution in Scotland”. This followed two sessions of the Committee taking evidence from solicitors, advocates, arbitrators, mediators and family law representatives. The first half of the report looks at what ADR is, barriers to its uptake, funding, in court services and the role of the court. Key points identified by the report are:
- whilst “alternative dispute resolution” is commonly used to refer to dispute resolution methods outside the court system, these should not be seen as competing with each other and there may be merit in moving to a term such as “appropriate dispute resolution”;
- the main types of ADR currently used in Scotland are mediation, conciliation, arbitration, adjudication and ombudsmen;
- the potential benefits of ADR, particularly compared with going to court, were noted as being quicker, cheaper, less stressful, more flexible in terms of the process and outcome, confidential, helping build and maintain relationships, using a third party with relevant skills and experience, putting parties at the centre of the process, producing agreements which have a higher rate of compliance and having wider benefits for businesses, communities, the Scottish economy, as well as reducing pressures on the court system;
- the extent and uptake of ADR services is difficult to measure, due to gaps in publicly available figures. There is a wide range of ADR services in Scotland but most of these are consumer schemes based in England with UK coverage. In any case the availability of ADR would not automatically lead people to use it, due to a lack of information on its availability and benefits and inconsistencies in its provision, funding and referrals from court;
- there should be a co-ordinated programme to raise public awareness of the benefits and availability of different ADR methods in Scotland, as early as possible in a dispute;
- the solicitors’ regulator in Scotland, the Law Society, should ensure sufficient focus is given to ADR during legal education and training and consider more robust requirements on solicitors around advising clients on the range of dispute resolution methods available to them;
- more consistent funding and provision of in-court ADR services is required to encourage greater uptake of ADR and to ensure that people have a genuine choice about how to resolve their disputes;
- existing court rules take different approaches to ADR. For example in commercial court actions, the rules encourage the speedy resolution of a dispute and a practice note encourages parties to consider ADR (as we reported in March 2017. However some sheriffs and judges are more willing to encourage or refer to ADR than others. The “Rules Rewrite Project” being undertaken by the Scottish Civil Justice Council is an opportunity to ensure that court rules consistently encourage sheriffs and judges to refer cases to ADR and to provide sufficient guidance on when referral are appropriate, along with more training for the judiciary.
The second half of the report looks at what other changes would be sufficient to facilitate a step change in the uptake of ADR in Scotland. The Committee considered evidence on the benefits and drawbacks of making ADR compulsory, including questions of choice, culture and costs. Mandatory information meetings on ADR before attending court were also considered (like those already introduced in England and Wales), whilst the need for appropriate exceptions for victims of domestic abuse and children was highlighted. The Committee also considered the potential role of legislation on ADR, similar to the Irish Mediation Act which came into force on 1 January 2018 and which sets out a framework for mediation as an alternative to civil court proceedings. That framework includes obligations on lawyers to advise parties to consider using mediation, an option for the courts to invite parties to consider mediation, codes of practice and general principles for the conduct of a mediation. Importantly, much like the current approach in litigations in England and Wales, it also allows courts to award costs where this is justified based on the unreasonable failure by a party to consider using mediation or to attend mediation.
The Committee concluded that, on balance, people should not be compelled to participate in ADR as to do so could undermine the benefits derived from its voluntary nature and parties should remain free to choose court if they wish, which in some cases may be the most appropriate form of dispute resolution. Nevertheless, the Committee considered that more fundamental changes which could facilitate a step-change in the uptake of ADR in Scotland should now be explored. It therefore recommended that:
- mandatory dispute resolution information meetings should be piloted in ensure parties have a better awareness of the options available and an informed choice about how to resolve their dispute;
- there is a rethink of the resources available to people to help them prepare for ADR; and
- consideration is given to whether broader legislation similar to the Irish Mediation Act is necessary to promote and regulate greater use of ADR.
This report uses radical language – talking about “fundamental changes” to “facilitate a step-change in the uptake of ADR in Scotland”. The reality is less radical, namely recommendations for piloting mandatory dispute resolution information meetings and legislation of the kinds already seen in England and Wales and Ireland respectively. Nevertheless the aims and outcomes of the report are to be welcomed and can be seen as part of a momentum and interest in ADR which is building in Scotland. Its recommendations are positive steps, which could make a significant impact on increasing awareness and choice in the use of ADR.
“I won't see you in court: alternative dispute resolution in Scotland” – 9th Report, 2018 (Session 5), published 1 October 2018, Justice Committee, the Scottish Parliament.