The Proposed Mediation (Scotland) Bill - by Roger Levitt

The Proposed Mediation (Scotland) Bill – Should a Similar Bill Be Introduced South of the Border?

Summary

Margaret Mitchell MSP for Central Scotland is proposing a Mediation Bill (supported by the Scottish Government) to apply for Scotland and she issued a consultation on 29th May 2019. The aim of the Bill is to increase the use and consistency of mediation services for certain civil cases by establishing a new process of court initiated mediation that includes an initial mandatory Mediation Information Assessment Meeting (MIAM) involving a statutory duty mediator

Background

The Justice Committee held two round-table evidence sessions on ADR, which Margaret convened, in February and March 2018. This resulted in a report on ADR published in October 2018 entitled “I Won’t See You in Court” That report included detailed consideration of the use of mediation in Scotland, and highlighted several issues, including that the awareness, uptake and consistency of mediation services are not nearly as good as it could be. The report also concluded that parties should not be compelled to participate in mediation, as it is most effective when undertaken voluntarily.

This is a conclusion with which Margaret wholeheartedly agrees -and so do I. She is, therefore, proposing a member’s bill to increase the use and consistency of mediation services in Scotland, which will, in turn, increase people’s awareness of what mediation is and what it can do for them.

I believe a similar Bill should also be initiated in England and Wales, although I’m not aware of any similar plans to do so

I believe such a voluntary approach would be an example of good practice and that Margaret’s proposal is similar to the process that works in the family arena in England and Wales,( i.e with a MIAM), followed by voluntary mediation if the parties so choose

There is an excellent analysis of taking up of mediation around the world by court-annexed schemes and judicial invitation and referral. This is beyond the scope of this article but can be read in the Consultation

Details of the Proposed Bill

The Bill will establish a new mediation process for courts and litigating parties to follow each time a civil case comes to court—

  1. The Court initiates the mediation process for the parties involved (unless the case relates to an issue excluded from the Bill) by issuing parties with a self-test questionnaire (probably based on the one used in the Netherlands – to assess whether the case is suitable for mediation);
  2. The Court appoints a duty mediator;
  3. The Parties meet with the duty mediator (in a MIAM) to consider the questionnaire responses and to agree whether to enter into a Mediation Commencement Agreement; to assess whether the case is suitable for mediation, (the cost of this would be met from the Scottish Government’s Justice budget)
  4. If the Parties do not wish to mediate then the process ends and parties are free to proceed as they wish (including by litigation – (however, they could not do so without confirmation that the Mediation Information Session had taken place);
  5. If the Parties do wish to mediate, then they will be required to appoint a mediator and sign up to a Mediation Commencement Agreement;
  6. If mediation is successful, then the Parties will sign a Mediation Settlement Agreement. There will be no cost to the Parties for stage 1 to 3 of the process, but parties will be required to pay for the cost of any mediation under stages 5 and 6.

Margaret proposes that the confirmation should not disclose whether or not the case is suitable for mediation, which would preserve the voluntariness of the process, as the parties may decide not to mediate even if the case is suitable for mediation. I think this point is debatable.

Exclusions

Margaret’s proposed Bill will exclude certain matters from its provisions, where the nature of the dispute is not suited to mediation or another procedure is prescribed for the determination of that type of dispute, such as—  proceedings relating to abusive behaviour and sexual harm / offences, abuse, sexual harassment; rape;  declarations of validity or dissolution of marriages; matters under tax and customs legislation; and judicial review proceedings.

Possible extension of the mandatory process:

Margaret is considering including in the Bill a power for Scottish Ministers to extend, by regulation, the first, mandatory, part of the process (involving the self-test questionnaire and MIAM) to apply to cases before they come to court. This would involve potential litigants being advised of the requirement to complete the questionnaire and attending a MIAM before being able to pursue litigation. Margaret says the details of this would require further consideration, once the court initiated process has become established. I think this is an excellent proposal, as I have conducted many mediations pre-issue. If people were proactively and comprehensively advised of the mediation option before they issue proceedings, coupled with an obligation to attend a MIAM then a great deal of unnecessary time money, stress and uncertainty would be saved. There is currently an obligation in the pre-action protocol to consider mediation, but in my experience, it is often only observed by lip service.

The Parties

The Bill would have a positive impact upon the Parties as it would provide them, free of charge, with information and an assessment of the suitability of mediation as a way of possibly resolving their dispute. This could lead to a dispute being resolved saving time, stress, and cost. Also, the growth of video-conferencing and other new technology allows for a level of flexibility in the delivery of mediation that the current court system cannot replicate. New technology allows mediation to occur between parties separated by geography or who due to physical impairment find Court hearings difficult.

Solicitors and Barristers

Would an increase in the use of mediation reduce the amount that solicitors and barristers receive in fees? In my view no. Solicitors and Advocates have a role in the process, so by encouraging their clients to mediate and assisting their clients both before, during and after a mediation. Margaret hopes that Scottish lawyers do not view mediation as a threat but see mediation as a process which includes their participation. My experience in England and Scotland is that Dispute Resolution Solicitors are embracing mediation as part of their toolkit and see it as an opportunity rather than a threat. More Solicitors and Barristers I know are training to become accredited, mediators.  More generally, Margaret considers that the increased use of mediation presents an opportunity for solicitors and barristers who are mediators to take on more of these cases that involve mediation

Mediators

Margaret says that one of the aims of the Bill is to increase the use of mediation in Scotland. It is therefore likely that it would increase the workload of mediators and has the potential to grow the mediation profession in Scotland. She notes there are currently over 200 mediators on the Scottish Mediation Register. She says it is important that there are enough trained and available mediators in Scotland to perform the role of the duty mediator (to manage the MIAMs) and then that there are enough mediators to fulfil the demand for mediation from that point onwards. It will also be important that mediators are available to people in all parts of Scotland, which is why she intends to encourage the use of modern technologies to deliver mediation services

Possible extension of the mandatory process

Margaret is considering including in the Bill a power for Scottish Ministers to extend, by regulation, the first, mandatory, part of the process (involving the self-test questionnaire and MIAM to apply to cases before they come to court. This would involve potential litigants being advised of the requirement to complete the questionnaire and attending a Mediation Information Session before being able to pursue litigation. The details of this would require further consideration, once the Court initiated process has become established. I’m in favour of this as I’m already mediating more cases pre-issue. In England & Wales, we also have the added incentive to mediate pre-issue, compared to Scotland because of our higher issue fees.

Conclusion

I think this is an excellent proposal and we would benefit South of the Border from a similar proposal. However, I doubt whether the Ministry of Justice would be prepared to fund it! – even though in the long run it would save the MOJ money in Court and Judges time.


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