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: Bringing Mediation into the Mainstream in Civil Justice in Scotland.
https://nationalperformance.gov.scot/ About the Author Jane is an experienced disputes lawyer who has specialised for over 10 years in the resolution of infrastructure, construction and energy disputes in the UK and internationally. jane fender-allison senior associate cms law tax