Making mediation mainstream in Scotland

A major new report has been published proposing a strategy to “normalise” the use of mediation in the civil justice system in Scotland as a “viable option in addition to, and often instead of, litigation”. Launched by Scottish Mediation, with work by the Expert Group on Mediation in Civil Justice and the Scottish Government, the report makes 27 recommendations. These include introducing a mandatory requirement on parties to attend a session about mediation, funding options and primary legislation by way of a Mediation Act.

Background

On 28 June 2019 Scottish Mediation launched a report “Bringing Mediation into the Mainstream in Civil Justice in Scotland” by the Expert Group on Mediation in Civil Justice in Scotland. The report is a cumulation of the work of the Expert Group (comprising representatives of the judiciary, advocates, solicitors, the third sector, mediation services, consumer interest and the small business community), Scottish Mediation and the Scottish Government, in exploring how greater use of mediation might be encouraged in the civil justice system in Scotland. The report’s preface says this is “testament to the fact that the [Scottish] Government is prepared to look at radical steps to attempt to improve users’ experience of the civil court system”.

The aims of the project were to:

• review the current provision of mediation in the civil justice system in Scotland;

• consider evidence of the use and effectiveness of mediation in other civil justice systems; and

• formulate proposals to enhance the use of mediation in resolving civil disputes in Scotland.

The work to address these aims involved a review of the current provision of mediation in Scotland (including existing court rules; relevant legislation; the legal profession’s rules and guidance; standards and regulation; mediation services available to the courts; and wider trends and policy developments relating to civil court reforms), a review of international evidence on mediation and meetings with stakeholders. This all led to 27 recommendations, to encourage the greater use of mediation in resolving civil disputes in Scotland. A full set of the recommendations can be accessed here and we set out a summary below.

Report

The report starts by looking at the concept of mediation in civil disputes, what it is, its benefits and limitations. Much of this will be familiar to mediation practitioners and users. The report goes on to look at the present “landscape” of mediation in civil justice in Scotland. This is a detailed review of the current position of mediation in the Scottish courts, tribunals and elsewhere, including in the context of ongoing civil court reforms. It identifies that provision for alternative dispute resolution in Scotland’s civil court rules is growing, but that its implementation has been inconsistent and made without the necessary infrastructure to support its delivery. As a result, the use of mediation remains limited. This section also highlights the currently unregulated system of training and accreditation of mediators in Scotland by a range of bodies, noting that this could be seen as counter‑productive for the development of the profession and confusing for the general public.

The report then considers “normalising” mediation in civil justice. It says “hoping that things will change is not a sustainable policy. Scotland needs to adopt a more proactive approach over time in order to deliver a viable pathway to mediate disputes”. In doing so, the report identifies opportunities – such as the ongoing civil court rules review; recent reports opening up areas for possible reform (re legal services, legal aid, ADR and the recent consultation on the proposed Mediation (Scotland) Bill); and how this sits well with Scotland's National Performance Framework (the Scottish Government’s framework for creating a more “successful” Scotland, with increased wellbeing, opportunities and reduced inequalities[1]). It also considers challenges, which it divides into structural challenges (coordinating uniform implementation, proportionate costs / incentivising mediation, clearer signalling of quality standards and consistent messaging in rules and legislation); and cultural challenges (changing professional receptiveness, building wider awareness in society and embodying a new dispute resolution culture).

Overall the report is clear in its view that now is the ideal time to propose a new framework for the increased use of mediation in civil justice in Scotland.

Recommendations

The report then identifies 27 recommendations as to how this can be achieved. The recommendations (which can be found in full here), are set out under the categories of case management; funding; standards, regulation and professional rules; court rules, tribunal rules and legislation; and education, training and awareness building. Of particular significance are:

• Recommendation 1 “A degree of compulsion should be introduced into the system to encourage parties to consider mediation. Where mediation is appropriate, parties should be required to attend a mediation session before their court or tribunal case can proceed”. This stops short of a recommendation for mandatory mediation. However the report says that providing a new viable pathway in civil justice means introducing a minimal degree of compulsion, to ensure parties engage in the process. The proposed process involves a mandatory initial meeting of the parties with a mediator, who would explain what mediation involves and invite the parties to consider participating in a mediation. This would be to encourage parties to consider mediation and ensure that they are able to give their informed consent, should they choose to do so. If they do not so choose, the case would go back to the court or tribunal for a hearing.

• Recommendations 2 to 6 The above is proposed to be effected by establishing an “Early Dispute Resolution Office”, EDRO, across all courts and tribunals. Its functions would be a first stage “triage” to review all cases and identify and direct cases towards mediation (or other more appropriate forms of dispute resolution) and to coordinate the mediation process. The EDRO system is proposed by way of a two‑pronged approach: court rules requiring sheriffs and judges to encourage parties to consider mediation where appropriate; and introducing mandatory referrals to mediation* via legislation, with provision for “special cause exemptions”. (These exemptions are where mediation has already taken place or a mediator is currently engaged, there are time bar issues, contractual clauses stipulate specific ADR methods, another preferable ADR method exists, the case involves a protective order or enforcement order and disputes where there is a risk of domestic abuse, sexual violence or other gender-based violence.) This is based on a presumption that cases will be referred to mediation* unless there is a good reason not to do so. A mediator “roster” would be introduced, to be used by the EDRO in making referrals, or parties could choose their own mediators.

*It is understood that “mandatory referrals to mediation” and “cases will be referred to mediation” both mean a referral to the mediation session described at recommendation 1 above i.e. a session about mediation and not a mediation itself. Indeed the report clearly states “there is no intention to force parties to mediate” and that after the mediation session the parties would not be required to continue with mediation if they did not wish to, in which circumstances the case would go back to the court or tribunal for a hearing.

• Recommendations 10 to 14 When it comes to the thorny issue of funding, the recommendations are based around the type and value of the disputes in question. I.e. for mediations in tribunals to be publicly funded where appropriate; for lower value claims to have publicly funded or very low‑cost mediations available; for parties in medium to higher value claims above a suitable “price point” to pay commercial rates agreed with the mediator; and below that price point (or where there is no clear monetary value) for appropriate models to be considered, such as a “sliding scale”. There is also a recommendation that mediators should be appropriately remunerated for their work, particularly in light of the current “unsustainable” dependence on pro-bono mediators in lower value cases.

• Recommendation 19 “Primary legislation in the form of a Mediation Act should be introduced This would: place a duty on Scottish Ministers to promote the use of mediation; set out a regulatory framework for roster mediators; set out the grounds for special cause exemption; formalise principles; provide definitions; endorse the components of a code of practice for mediators; provide for confidentiality in mediation; and signal a paradigm cultural shift for dispute resolution in Scotland.” The report notes that the international review carried out found a consistent legislative component in the jurisdictions it had looked at. It sees two broad functions to such legislation in Scotland as part of a wider package of measures: to provide clarity in areas of law relating to mediation which are currently unclear (such as confidentiality in mediation, standards for mediation conduct and possibly enforceability of mediation agreements); and to raise the profile of mediation among the judiciary, solicitors, business and the wider public, to help “legitimise” mediation, leading to its increased use and ultimately to behavioural and cultural change.

• Recommendations 24 to 26 The report recommends that the Scottish Government leads by example: by committing to include mediation in dispute resolution clauses in its own contracts; and by considering carrying out research into public awareness of mediation. It also recommends that other public bodies should follow this lead by including mediation clauses in their own contracts.

Implications

This is a report which pulls few punches. It is unapologetic in its position that mediation can provide tried and tested benefits to the parties, as well as wider benefits to society and the economy. It sees the opportunity and benefit of a cultural shift in dispute resolution in Scotland to one which embraces mediation. It also sees the ideal time to take that opportunity as now.

The report comes hot on the heels of the consultation for a Member's Bill on mediation in Scotland (currently open for responses until 20 August 2019 – see our Law-Now on the Bill here). The report and the consultation in turn follow a 2018 report of the Justice Committee of the Scottish Parliament and developments in the courts (for our Law-Nows on both of those developments, click here and here). It remains to be seen how the report’s and the consultation’s proposals for mediation legislation might sit together and how they might be received. These are overlapping but not identical – the report’s vision for legislation being wider than that proposed in the consultation. Their common recommendations for mandatory sessions about mediation, albeit these are not mediations themselves, may divide opinion. These are deliberately not recommendations for an obligation to attend mediation itself. Nor are they recommendations for a system of “implied compulsory mediation”, as some call the position in English litigation of mediating to avoid the risk of costs sanctions for “unreasonably refusing” to do so. Whether the Scottish system might ultimately go down a similar route remains to be seen. For now, there is a clear decision by the report and the consultation not to do so. Instead they have each recommended the mandatory sessions about mediation. If either of these recommendations become a reality parties would find that, barring limited exceptions, they would be obliged to attend a session giving them information about mediation and looking at its suitability for their case. After that, proceeding to mediation or not would remain the parties’ choice.

Whilst this is a key recommendation, it is important that the report is not defined by it alone. There is a whole package of wide-ranging measures which the report has recommended to make mediation “mainstream”. There is no doubt that both the report and the consultation are positive developments for mediation. Together, they signal the increasing momentum of the movement to integrate mediation in the Scottish civil justice system.

References:

Brining Mediation into the Mainstream in Civil Justice in Scotland.

[1] https://nationalperformance.gov.scot/