We have been looking at the recommendations made by the Civil Justice Advisory Group ("CJAG") who published their report titled "Ensuring effective access to the appropriate and affordable dispute resolution" (the "Report") earlier this year. This report followed a wide ranging review - the "Scottish Civil Courts Review" the "Gill Review") in September 2009. Since the Gill Review was published it has been subject to comment and analysis by many individuals and organisations, responding to the wide-ranging recommendations put forward.
A hotly debated topic has been whether the Scottish courts should embrace mediation as part of the judicial process. We have already considered whether the court rules should encourage the use ADR, and in particular mediation.
Continuing the 'triage' approach advocated throughout the CJAG report, the eighth recommendation is for a mediation scheme to be available which could be accessed prior to an action being raised, as well as available to the court. This is an extension of the proposal in the Gill Review that a free, court-based mediation scheme be made available for all claims under £5,000.
The approach taken by the Gill Review is predicated on the assumption that the courts are the first port of call where a dispute arises. Under its recommendation, the scheme would not be available until the court action was raised. The recommendation of CJAG is to be commended for recognising that by assessing a dispute at an early stage, it may never have to formally enter the court process.
A factor that often drives any settlement negotiation is that proceeding with the action will increase costs and ultimately make pursuing the claim no longer commercially viable. This is magnified where the value of the claim is lower. The concept of a free mediation service is one that should be welcomed. In addition however, the availability of the mediation service prior to the action being raised would increase the likelihood of the dispute being channelled away from the courts before the parties become immersed in a formal court process. This would result in savings for the parties, and free up court time to deal with other matters