The Proposed Mediation (Scotland) Bill – mediation to be a mandatory consideration in civil disputes?

Margaret Mitchell MSP has recently launched a consultation for a proposed new Mediation (Scotland) Bill which aims to introduce a process of…

Margaret Mitchell MSP has recently launched a consultation for a proposed new Mediation (Scotland) Bill which aims to introduce a process of court-initiated mediation, which would require litigants to complete a questionnaire at the outset to determine whether the dispute was suitable for mediation.

What is mediation?

Mediation is a form of alternative dispute resolution which seeks to assist parties to settle disputes. The Scottish Mediation website describes it as “a flexible process that can be used to settle disputes in a whole range of disputes. Mediation involves an independent third party, the mediator, who helps people to agree a solution where there is a disagreement. The mediation helps parties work out what their issues and options are, then use those options to work out an agreement.”

The proposed Bill

As the consultation is at an early stage, there are very scarce details of what the provisions of the proposed Bill will look like and how it would operate in practice. The consultation document refers to the court-initiated mediation being used for only relevant civil cases, specifying several types of action that would be excluded from its provisions, including judicial review proceedings or matters which involve tax and customs legislation.

The Bill will have two broad aims, which are to increase the use of mediation, and to increase the consistency of mediation services.

Under the proposals, parties to a dispute would be provided with a self-test questionnaire at the outset of a litigated dispute to determine whether the claim is suitable for mediation. A mediator is then appointed by the court to discuss the questionnaire responses, and to determine whether parties should enter into an agreement to commence mediation. Should parties decide they do not wish to mediate, the parties are free to continue with the litigation.

Whilst the proposed Bill does not go as far as suggesting mediation will be mandatory, it would impose a mandatory process in which litigants would have to consider and speak with a mediator before being able to proceed with litigation in the courts.

The consultation document points to the Republic of Ireland where the Mediation Act 2017 was passed to place a statutory obligation on solicitors to inform their clients of the option of mediation, and which also allows judges to recommend mediation in suitable cases.

Commentary

Recent research published by the Scottish Government into the use of mediation in civil justice (Mediation in Civil Justice: international evidence review, published 25 June 2019) has shown that the use of mediation can have positive outcomes for parties and the justice system, including possible cost benefits. However, it was acknowledged that access to justice is a key component of the justice system, and careful consideration should be given to what kind of justice mediation offers, and when it is most appropriate. The research indicated that the positive outcomes of mediation are twinned with less positive substantive justice outcomes.

For users of mediation, the Scottish Government’s research failed to identify conclusive evidence that the outcomes of mediation favoured a mandatory system over a voluntary system, or vice versa.

There are undoubtedly benefits of mediation for those who wish to resolve their dispute without the need for litigation. However, it is questionable whether introducing a mandatory process which forces parties to consider mediation as a suitable mechanism to resolve their dispute at the outset of a court action is the best way to achieve the aims of the proposed Bill.

The consultation on the proposed Bill is open for responses with a closing date of 20 August 2019. Read the consultation document

For any further information regarding any aspect of the issues raised in this case, please contact Pamela Stevenson, Partner on 0141 375 0867 or email pamela.stevenson@weightmans.com, or Callum MacKinnon, Solicitor on 0141 375 0861 or emai callum.mackinnon@weightmans.com

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