As litigants increasingly look for quicker and more cost-effective alternatives to the courts, mediation is becoming well known as a means of resolving disputes.
Mediation involves an independent third party (the mediator) helping parties to a dispute explore the issues and reach a solution in a completely confidential setting. Compared to the courts, where the final outcome rests entirely with the judge, mediation gives the parties control over the terms of the agreement they want to reach and its flexibility means that far wider interests, issues and solutions can be explored and resolved.
However, the growing appreciation of the benefits of mediation has not translated into a significant uptake in its use, particularly in complex commercial disputes. The provision of court-appointed or supported mediation services across Scotland is disparate and limited. Formal arrangements are limited to particular areas, primarily low value claims and family disputes, and particular locations.
Calls for more to be done to increase the uptake of mediation services have been gathering for some time, and have culminated in recent proposals for new legislation. The Convenor of the Scottish Parliament's Justice Committee, Margaret Mitchell MSP, has published a proposal for a Mediation (Scotland) Bill to be brought before the Scottish Parliament.
The central aspect of the Bill is a new obligation on all parties to litigation to attend a compulsory "mediation information session". This would be a meeting with a court-appointed duty mediator in order to discuss the suitability of the case for mediation. After that meeting, the parties would be free to choose whether to continue with a mediation (at their own cost) or to proceed with the litigation. Certain types of proceedings are excluded from the proposed compulsory meeting, such as proceedings relating to abusive behaviour or harassment, judicial review and employment disputes (which are subject to separate processes). Whilst any steps intended to increase the awareness and use of mediation in Scotland are to be welcomed, it is not clear what the mediation information session achieves beyond what can already be achieved by comprehensive advice from a solicitor or indeed comments from the bench at the outset of a case. If this is our opportunity to effect a sea change in the use of mediation in Scotland, should we not show greater ambition?
Shortly after the publication of Margaret Mitchell MSP's proposals, Scottish Mediation published its report "Bringing Mediation into the Mainstream in Civil Justice in Scotland". The report follows an expert group review, and recommends the introduction of a degree of compulsion into the system. Scottish Mediation's proposal is that an Early Dispute Resolution Office should be established across all courts and tribunals in Scotland, which would review each new case and direct appropriate cases towards mediation. The presumption is that cases will be referred to mediation unless there is a good reason not to do so. Parties would be required to attend mediation before their case can proceed at court, although it is acknowledged that no one can be forced to actively and constructively participate at the mediation session. This highlights the fundamental strength of mediation – it works because parties genuinely want to use it to find a solution. The challenge in driving mediation forward is improving attendance in a process that is founded upon willing participation.
This proposal is complemented by a wide range of recommendations to address the cultural and structural challenges of improving access to mediation, such as a mediation roster to make referrals to mediators at pre-arranged rates, including at no cost for the lowest value claims. All great innovations, if we can overcome the fundamental challenges.
Is a mandatory process the best approach?
The various contributors to this debate share a desire to normalise discussions about the benefits of mediation at an early stage of litigation. Making the "mediation conversation" a routine step in the process will inevitably improve the rate of uptake.
The challenge to ingraining such conversations is that a "one-size fits all" approach does not take account of the vast range of proceedings before the Scottish courts. Encouraging early mediation is best considered on a case-by-case basis by those with detailed knowledge of the proceedings. That means tasking our judges, sheriffs and tribunal members with the role of enquiring of the parties early in a litigation what consideration has been given to mediation and, if the response is not satisfactory, putting the case on hold pending further exploration of that option.
The reason that this intervention is best undertaken by the judge involved in the proceedings is that the suitability of a dispute for mediation and, more importantly, the optimal timing to hold a mediation will vary from case to case. The option of mediation will already be the subject of discussion between solicitors and their clients in many cases, and case strategies may well be geared towards an offer of mediation at what is considered to be the optimal point. That may not be at the outset of the case – indeed it will often only be once expert evidence has been obtained and a comprehensive assessment of the merits undertaken. In commercial actions in the Court of Session, parties need to be in a position to discuss the suitability of the dispute for mediation as part of the active case management process. It does not seem appropriate in those circumstances to require parties to also attend a mandatory information session, particularly if those parties are based outside Scotland. Unhelpful and expensive mandatory process will not attract complex commercial cases to the Scottish courts. In a time where jurisdictions are competing to be the forum of choice for high value commercial disputes, it is important that any changes that we make to our procedures incentivise Scotland as a forum of choice and continue to showcase the Scottish courts as an attractive place to litigate complex disputes.
In our experience, the fundamental source of success in mediation is the parties' genuine desire to participate in order to find a resolution, or at least their willingness to attempt to do so. That success comes in large part from the entirely voluntary nature of mediation. We would be concerned that factors contributing to that success will be lost if we move towards a situation where mediation is compelled, particularly if it is compelled at a point in the case that the parties and their advisers consider less than optimal. A party who is forced into mediation, and who takes a completely intransigent stance at the mediation, will not only make the process entirely ineffective but could further polarise the parties' position and make resolution, other than by judicial determination, even less likely.
Improving service provision
Encouraging, or even compelling, parties to consider mediation can only ever be part of the answer. The best way to incentivise parties to pursue early settlement, whether through mediation or otherwise, is through the provision of a high standard of alternative dispute resolution service offered by all Scottish courts.
Improving service provision requires investment from the public purse via the Scottish Court Service. It should be acknowledged that early settlement provides a significant saving for the courts. We discount sentences in criminal cases for exactly that reason – by pleading guilty early there is a saving of the cost of a trial. A lengthy hearing in a civil dispute could potentially be avoided by a much shorter mediation. Therefore, consideration should be given to providing the services of mediators at no cost to parties in a wide range of civil disputes (beyond the current schemes) or perhaps at low cost in higher value claims.
If complex commercial cases are to be resolved at mediation rather than judicially, we need to provide a service that is as good as, or better than, the service currently provided by the judiciary. It will require mediators who are of a similar calibre to and have the experience of members of the judiciary. We should be creative and ambitious in our approach – for example, experienced mediators across a range of specialisms could become salaried employees of the Scottish Court Service and some members of the judiciary could be trained as mediators. With parties' consent, cases could be appointed to a mediation track in each court. What is clear is that simply "bolting on" a compulsory process to the current service provision is not the answer.
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