A consultation has been published on the Mediation (Scotland) Bill, a proposal for a bill to increase the use and consistency of mediation services in Scotland and to introduce a new process of court-initiated mediation including an “initial mandatory process involving a statutory duty mediator”.
On 28 May 2019 MSP Margaret Mitchell launched a consultation proposing a member's bill on mediation in Scotland. The consultation, which is open for responses until 20 August 2019, is being supported by the Scottish Parliament’s Non-Government Bills Unit.
The consultation begins with setting out the real-world context for the proposals. It kicks off with a list of fairly uncontroversial benefits of mediation i.e. it gives parties greater control in dispute resolution; reduces costs; can result in swifter outcomes; is more convenient and flexible; has a greater rate of compliance with settlement outcomes etc. The consultation then delivers something of a reality check as regards the mediation facilities currently available in Scotland. In particular, it looks at what formal arrangements have been made to accommodate mediation processes within the civil justice system to date, the availability of trained/accredited mediators across Scotland and arrangements for supervision and oversight of those mediators. For example:
- while there are specific arrangements in place to accommodate and encourage mediation in certain fora (e.g. for simple procedure cases of £5,000 or less and through family mediation) this is not standard across the whole civil justice system;
while certain recent legislation seeks to give judges a role in encouraging parties to litigation to consider mediation, in reality there is a lack of consistency in the approach taken by individual judges;
there are only a handful of Sheriff Courts in Scotland with direct local access to mediation services and only one court (Edinburgh) with any state-funded mediation services;
there is substantial reliance on pro bono and voluntary mediation services; and
whilst there are a number of mediation organisations, there is no single mediation body in Scotland with responsibility for accrediting mediators or promulgating a code of conduct.
Having concluded that there are issues with public awareness of mediation, patchy uptake of services and barriers to its wider use, the consultation looks briefly at how mediation services are used in other jurisdictions. For example, it notes that in England and Wales, costs sanctions may be imposed by the courts against parties who “unreasonably refuse” to mediate and in the Netherlands a “court-annexed” voluntary system, supported by court infrastructure and state funding, has produced positive settlement rates. Against this background, the consultation sets out the proposals on which it seeks views.
Proposed New Mandatory Process
The crux of the proposed bill is the introduction of a new mandatory process. This would stop well short of mandatory mediation, but it would involve the parties attending a court action meeting with a mediator for a “Mediation Information Session”:
- the court would issue a self-test questionnaire for the parties to complete (an example is included from the Netherlands, focussing on the parties’ attitudes to reaching a mutual agreement);
the court would appoint a “duty mediator”, to meet with the parties for a Mediation Information Session, with the cost of the mediator being met by the Scottish Government;
the Mediation Information Session would discuss the questionnaire responses, help parties acquire information on the benefits of mediation and determine the suitability of their case for mediation;
the parties would choose whether to continue with mediation or not, at their own cost. If so, they would enter into a Mediation Commencement Agreement setting out the terms upon which the mediation would be conducted;
if not, the duty mediator would be required to provide confirmation that the Mediation Information Session had taken place. This would not disclose whether or not the case was suitable for mediation, to preserve the voluntariness of the process.
Should the process lead to a mediation which then settles, it is proposed that parties would have the option to make the settlement agreement a decree (order) of the court. This would allow for immediate enforcement of the parties’ agreement in the event of non-compliance, as opposed to one party needing to raise an action for breach of contract.
Significantly, this mandatory process is proposed to apply to all civil cases, bar exclusions such as domestic abuse cases, arbitration proceedings, judicial reviews etc. There is even suggestion of a possible power for Scottish Ministers later to extend this, by regulation, to apply to cases before they come to court.
Elsewhere the proposals emphasise the opportunities of technology, including its potential to reduce barriers to mediation. There are more practical points to consider as well – the proposals highlight the need for sufficient numbers of trained mediators throughout Scotland, support from the Judicial Institute (including appropriate training in mediation) and buy-in from solicitors and advocates.
A development like this has been in the pipeline for some time. As we reported previously, a 2018 report of the Justice Committee of the Scottish Parliament suggested exploring changes to address existing barriers to using ADR, mandatory information meetings or even legislation, as “more fundamental changes which would facilitate a step-change in the uptake of ADR in Scotland”. Before that, we saw greater encouragement from the courts to parties to consider ADR.
Whilst these proposals are not nearly as wholesale as something like the Irish Mediation Act 2017 (which sets out a framework for mediation as an alternative to civil court proceedings), they could nevertheless introduce significant change. Mediation Information Sessions may at first glance seem similar to Mediation Information and Assessments Meetings, used in relation to certain family actions in England and Wales since 2011. However, as currently proposed, Mediation Information Sessions would go much further by applying to all civil court actions (bar the excluded processes). This route would also arguably better maintain the voluntariness of mediation, compared with “implied compulsory mediation” as some describe potential cost sanctions for unreasonably refusing to mediate in English litigations. However this bill may develop, its proposal can be seen as a meaningful step in Scotland’s ADR journey.