Scottish government considers systematic reform of the civil justice system to 'normalise' mediation

The Scottish government has recently issued a publication on its plans to reform the use of mediation in the Scottish civil justice system. In the publication, the government expresses its intention to establish a 'Scottish Dispute Resolution Delivery Group' that will meet in early 2020 to develop and shape an "evidence-based package of reform" relating to mediation in Scotland. These meetings will be followed by a public consultation seeking views of the general public, stakeholders and interested parties, with the aim of building consensus on the way forward for mediation in the civil justice system in Scotland.

The government publication was issued in response to a June 2019 report by an 'Expert Group' of leading mediators under the auspices of Scottish Mediation entitled 'Bringing Mediation into the Mainstream in Civil Justice in Scotland' and a May 2019 proposal for a member's bill on mediation (and a related consultation) by MSP Margaret Mitchell. The Expert Group Report was created with the government's support and contains 27 recommendations to encourage increased use of mediation, including the introduction of "a degree of compulsion" into the system, the establishment of an Early Dispute Resolution Office to direct parties to mediation and coordinate the mediation process where appropriate, and the creation of a Mediation Act. The draft bill proposed by MSP Mitchell seeks to establish a new process of court-initiated mediation, whereby the parties to civil proceedings are required to answer a questionnaire assessing the suitability of mediation for the case and attend a mandatory 'Mediation Information Session' with a duty mediator before they can decide whether or not to proceed with the mediation of their dispute. The Scottish government has indicated that it will take some time to review the proposals by the Expert Group and MSP Mitchell in order to assess the impact on the general public, businesses, the legal profession, and the broader justice system. We expect that these proposals will be considered further in the 2020 consultation that was announced by the government.

These developments in Scotland are particularly interesting in light of the parallel debate in England & Wales on how to 'normalise' the use of mediation in the civil justice system, including whether there is scope for some degree of compulsion. That debate has been examined most recently in the Civil Justice Council's 2018 'ADR and Civil Justice' report (summarised here), which recommended a number of reforms to give more weight to the existing 'nudges and encouragements' toward ADR in the English court system.