ReSolution Issue 22, September 2019 | Page 27

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.