Making Mediation Mainstream in Scotland Jane Fender-Allison 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,