Wed 10 Jun 2020

Another Step Forward for Mediation in Scotland

A policy proposal for the Mediation (Scotland) Bill has been produced by Margaret Mitchell MSP.  It includes an outline of the framework which will be introduced to meet the main aims of the Bill, which are to increase the use of mediation and improve the consistency of mediation services across Scotland.

Most notably, the proposal includes an introduction of a mandatory, court-initiated process for considering mediation in simple procedure cases at the Sheriff Court (claims involving sums below £5,000).

How will this work in practice?

  • Although Solicitors are already duty-bound to advise their client about alternatives to litigation, the Bill will include a distinct duty on Solicitors to advise their client about mediation as a form of alternative dispute resolution as soon as practicable after being approached or instructed to act for a claimant or respondent in a proceeding. 
  • Parties will be required to complete a standardised Mediation Questionnaire during the process of commencing or responding to a claim, through the Civil Online portal.  The aim is to assist parties to make an informed decision about whether mediation would be a viable alternative to court action, by bringing the option to parties' attention at an early stage and gathering the information to allow the Duty Mediator to determine whether mediation would be appropriate.
  • Mediation Information Session - Unless the Sheriff deems the case to be unsuitable for mediation, it will direct both parties to attend a mandatory Mediation Information Session.  Participation in this session is mandatory (although it should be noted that the decision to mediation is voluntary) and Sheriffs will have the power to issue fines for non-attendance. 
  • A Duty Mediator (from the Roster of Mediators organised by Scottish Mediation) will arrange for a Mediation Information Session to take place within five days of the Sheriff's referral and will consider the information within the completed Mediation Questionnaires.  At the Mediation Information Session, which could be a joint or individual one, in person or online, the Duty Mediator will provide information about how mediation works and its benefits and limitations.   Following the Mediation Information Session, the Duty Mediator will determine the suitability of the case for mediation.
  • If it is a suitable case and all parties agree to pursue mediation, they will enter into a Mediation Commencement Agreement.  A Mediator will be selected from the Roster of Mediators and the Agreement will guide parties through the process, including a commencement date for the mediation, which should be within 14 days of agreeing to mediate.  It is worthy of note that if the mediation is successful, the initial fee paid by the Claimant will be refunded.
  • If it is deemed not suitable for mediation (or if parties refuse), the case will be referred back to the Sheriff to arrange for a Hearing.

What are the advantages of these new requirements?

  • Parties to litigation will be more informed about mediation as an alternative.
  • Disputes can be resolved more quickly and less stressfully.
  • Potential for less financial cost to parties - there will not be a fee for the use of mediation, which will be funded by the Legal Aid budget.
  • Mediation is able to offer parties alternative resolutions to disputes which are not rigid financial outcomes.
  • Huge benefit to court management of cases at a time where there is serious pressure on Scotland's civil litigation system

What next?

The process for introducing Members' Bills has been somewhat slowed by the Covid-19 pandemic.  However given that the Mediation (Scotland) Bill would have benefits to the Scottish Courts in the aftermath of the pandemic (by helping to ease the enormous backlog of cases waiting to be heard), it is hoped that this is one Bill which could be considered by the Scottish Parliament sooner rather than later.

It is relevant to mention that this is not the only initiative progressing in relation to mediation in Scotland. A Scottish Government resolution Delivery group was set up to develop and shape an evidence based package of reform following upon Scottish Mediation's report last year. Whilst it is understood that this commenced prior to the coronavirus lockdown, this is not able to advance to the expected timetable. With a backlog in the Court system as a result of the pandemic, perhaps the need for mediation is even more compelling.


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