Scottish dispute resolution package to push mediation

Out-Law News | 11 Dec 2019 | 5:21 pm | 3 min. read

Proposals aimed at normalising mediation in Scotland's civil justice system and encouraging its greater use should be considered further as part of a broader package of reforms to the country's system of dispute resolution, the Scottish government has said.

A dispute resolution delivery group, which will include representatives from organisations including Scottish Mediation and the Scottish Courts and Tribunal Service, has been tasked with developing and shaping "an evidence-based package of reform" in early 2020, with a formal public consultation exercise set to follow thereafter.

"The direction of travel is for an integrated approach to helping citizens resolve their disputes in the most proportionate way, but with the right of access to Scotland's courts always preserved," the Scottish government said.

The Scottish government's cautious support for mediation reform was outlined in its response to an independent review of mediation in Scotland which reported in June. The review was facilitated by Scottish Mediation, which brought together representatives of the judiciary, the Faculty of Advocates, the Law Society of Scotland, the third sector, mediation services, consumer interests and the small business community in an expert group to undertake the review.

The government's response also reflected on feedback given to proposals raised by one MSP, Margaret Mitchell, which are aimed at encouraging the greater use of mediation in the civil justice system in Scotland.

"From our analysis of the report and the consultation responses to the Margaret Mitchell Bill proposals, the Scottish government has concluded that the time is right to move towards reform of the civil justice system in Scotland to normalise mediation and other forms of dispute resolution to resolve disputes effectively and efficiently at the earliest opportunity but that public consultation is required in advance of our proceeding with reform to test key issues such as the financial model as well as how the proposals could work in practice," the Scottish government said in its response.

The Scottish government said "systematic reform" is needed in a number of areas "to overcome the structural and cultural challenges" that hinder the normalisation of mediation in Scotland currently. It said it would consider any new legislation that Mitchell introduces before the Scottish Parliament, but said "any legislation will require to tackle all of the issues simultaneously to bring mediation into the mainstream and that reform short of this may have limited effect in practice".

The expert group made 27 separate recommendations in its independent review of mediation in Scotland. One recommendation called for "a degree of compulsion" to be "built into the system to encourage parties to consider mediation", whereby parties would be "required to attend a mediation session before their court or tribunal case can proceed" in "appropriate" cases. Litigants would be able to apply to the court for a special cause exemption from that duty to attend mediation.

The review also urged a coordinated case management approach to be developed and implemented by an Early Dispute Resolution Office (EDRO), which would provide a form of triage service.

Dispute resolution expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law, said: "Alternative dispute resolution should be supported and encouraged in appropriate cases, but there can be no one size fits all here. Stakeholders' views should be canvassed widely, and their views given proper credence, in drafting any resultant legislation, to ensure that any reforms meet their aims. The Scottish civil justice system prides itself it its flexibility and relative accessibility. Properly done, reforms in this area can be an opportunity to build on that."

Connal said, though, that finding a balance between encouraging mediation and mandating its use in appropriate cases will be challenging, and could lead to unwanted satellite litigation.

"The lines between encouragement and compulsion can all too easily become blurred, especially in a system where parties in effect must mediate unless they apply for and are granted 'special cause exemption' or where court litigation ensues and expenses awards are fought over," Connal said.

"To have a situation where further court time and expense is taken up discussing whether or not a party did, or should have, engaged, or indeed the quality of any engagement, is to be discouraged and could in fact be viewed as a barrier to justice which a participant, under pressure to enter a process which they are reluctant to enter, feels is in the way of resolving their claim or dispute. Very careful consideration will have to be given to this, not to mention its funding for an already strapped civil justice purse," he said.