The Scottish Government has issued its formal response to a major review of mediation in Scotland. This is the latest in a series of significant mediation developments in Scotland and it signals that more are to come.

Background

In July 2019 Scottish Mediation launched a major Report “Bringing Mediation into the Mainstream in Civil Justice in Scotland” by the Expert Group on Mediation in Civil Justice in Scotland (see our Law-Now here). This reported on the work of the Expert Group and Scottish Mediation, with support of the Scottish Government, to explore how greater use of mediation might be encouraged in the civil justice system in Scotland. The resulting Report was clear that mediation can provide tried and tested benefits to parties in dispute, as well as wider benefits to society and the economy. It proposed a bold strategy, by way of 27 recommendations, to “normalise” the use of mediation in the civil justice system as a “viable option in addition to, and often instead of, litigation”. This included introducing a mandatory requirement on parties to attend a session about mediation, funding options and primary legislation by way of a Scottish Mediation Act.

The Report followed a number of significant mediation developments in Scotland including: more encouragement of ADR by the courts in 2017; a report of the Justice Committee of the Scottish Parliament in 2018; and a consultation for a Member’s Bill on mediation in Scotland in May 2019 (for our Law-Nows on all of these developments see here, here and here). The consultation for the Member’s Bill closed in August 2019 and a summary of responses can be found here. Cross-party support was subsequently sought and gained from 54 supporting MSPs. As a result, the Bill may be formally introduced in the Scottish Parliament up until 1 June 2020.

Scottish Government’s Response

The Scottish Government has now given its formal Response to the Report. Of particular note, the Response:

  • takes a positive approach to increasing mediation – “it is clear that mediation should have a bigger role to play in helping citizens resolve disputes” – whilst noting that the right to access court should always be preserved;
  • considers that a series of questions arise out of the Report which require to be resolved before legislation is brought forward;
  • says that the Scottish Government will therefore launch a public consultation on mediation and wider dispute resolution reforms in 2020 and collaborate with key stakeholders within a “Collaborative Partnership on Dispute Resolution” and a new “Scottish Dispute Resolution Delivery Group” as part of developing its policy on dispute resolution;
  • says that the Scottish Government will give careful consideration to the Member’s Bill on mediation in Scotland “if and when it is formally introduced to Parliament”, whilst noting that systematic reform is needed in a number of areas and that any legislation will require to tackle all of the issues simultaneously to bring mediation into the mainstream and to avoid limited effect.

The Response explains that the work of the new Scottish Dispute Resolution Delivery Group is to begin in 2020. This is expected to focus on the concept of an “Early Dispute Resolution Office” (a body proposed by the Report as a first stage “triage” to review all court cases, identify and direct cases towards mediation or other more appropriate forms of dispute resolution and to coordinate the mediation process); wider dispute resolution infrastructure; possible financial models; mediator standards and complaints; training for the legal profession; public awareness; whether legislation is required; and implementation arrangements.

Implications

The Response is another positive step for mediation. The Scottish Government is taking a clearly pro-mediation stance. Along with the momentum of recent developments, there is genuine potential to move towards embedding mediation in the civil justice system.

That said, the next steps the Scottish Government has set out may be more cautious than some expected. A public consultation and further work by stakeholders and experts will no doubt be productive, although they will take some time. In the meantime there is no commitment from the Scottish Government to legislating in this area, which leaves the door open for the Member’s Bill on mediation to progress.

References:

The Scottish Government Response to the Independent Review of Mediation in Scotland.

Bringing Mediation into the Mainstream in Civil Justice in Scotland.

Proposed Mediation (Scotland) Bill.