Instead of litigation, civil justice system should embrace communication
Radical alternatives to dispute resolution should be available to the public, says Graham Boyack
Last week, Scottish Mediation published Bringing Mediation into the Mainstream in Civil Justice in Scotland. The result of more than six months of intensive research, and then discussion and deliberation, the report states with regard to the use of mediation in the courts that, “hoping things will change is not a sustainable policy” and “Scotland needs to adopt a more proactive approach over time to deliver a viable pathway to mediate civil disputes”.
The research clearly showed that mediation is a tried and tested process for resolving disputes. It is relatively quick, informal and cost effective. It gives people control over the process and can result in solutions that better meet their needs than the court process can. It can also provide wider benefits, both to the people involved and to society and the economy.
In order to normalise the use of mediation there are a number of structural and cultural challenges that will need to be overcome.
The use of mediation in the courts across Scotland could at present best be described as patchwork. For it to work it needs to be available in the same form across Scotland. The cost for using mediation should be proportionate where appropriate and there needs to be incentives for people to use mediation.
The potential users of mediation
need to be aware of the quality standards they can expect from mediators and have confidence in the people they engage. Finally, there needs to be consistent messaging in the court rules and in legislation.
The cultural challenges stem from a system that is currently designed around litigation and therefore the key challenges include changing the professional culture in civil justice, building a wider awareness of mediation and, through this, developing a new dispute resolution culture.
In making such changes one of the keys to success will be to build on existing infrastructure, minimising the cost to the public and ensuring that mediation is embedded as seamlessly as possible.
Key to enabling a greater use of mediation in Scotland’s courts and tribunals is a coordinated case management system. It is proposed that this be done through an Early Dispute Resolution Office which would review cases, direct them to the mediation where appropriate and coordinate the mediation process. The presumption would be that, unless there is a good reason not to do so, cases would be referred to mediation.
Alongside this would be a special cause exemption process which would apply to cases such as those where there is a risk of domestic abuse or sexual or gender-based violence. To facilitate this change there would need to be a change in the court rules.
Legislation in the form of a Mediation Act would allow a public discussion about the use of mediation. A key part of the proposals would also be that unrepresented parties would have access to advice about their legal rights.
To support the introduction of mediation, a free or very low-cost mediation would be available to Simple Procedure cases. A suitable price point for Ordinary Cause cases would need to be agreed after which people would pay the commercial rate for a mediator.
Robust minimum standards for the provision of mediation would be introduced along with a requirement for solicitors and advocates to inform clients about alternatives to litigation.
If it is expected that legal professionals are to refer cases to mediation, then it should be included as a part of legal education from the start. There will also need to be training available for current professionals, whether lawyers, judges or officials, so that everyone is up to speed.
To promote an awareness beyond those involved in the law, the Scottish Government is asked to take the lead by putting mediation in its own contracts and helping to support
awareness of the general public and in sectors such as business. A wider understanding of what’s involved in mediation will help to embody a new dispute resolution culture.
The proposals that have been developed are radical. They will help the Scottish civil justice system to remain as one to which others look to for inspiration and one which delivers for the people it serves.
Copies of the report are available from the Scottish Mediation website at www.scottishmediation.org.uk
Graham Boyack, director, Scottish Mediation.