While it is difficult to obtain unequivocal direct evidence, the perception is that the use of mediation in Scotland to resolve disputes is growing. The extent to which mediation is used is still however less than appears to be the position in England. To some extent despite the efforts of some bodies such as Core Mediation, it is a bit of a "slow burn" in Scotland – or at least that is what anecdotal evidence will tell you.
Position in England
It has to be remembered that in England of course there has been significant support at higher level for the use of mediation. For example, in the report by Lord Woolf entitled "Access to Justice" published in 1996 there was clear support for the use of methods of alternative dispute resolution ("ADR"). In the introductory chapter to his report Lord Woolf wrote: -
"Two other significant aims of my recommendations need to be borne in mind: that of encouraging the resolution of disputes before they come to litigation, for example by greater use of pre-litigation disclosure and of ADR and that of encouraging settlement....I share the view, expressed in the Commercial Court Practice Statement of 10 December 1993, that although the primary role of the court is as a forum for deciding cases it is right that the court should encourage the parties to consider the use of ADR as a means to resolve their dispute."
These views were carried through into the Civil Procedure Rules adopted in England following upon Lord Woolf's report.
The courts in England have also taken a proactive stance using awards of costs as a sanction against those who will not use ADR when it is considered appropriate. In Dunnet v Railtrack plc, a case decided in the Court of Appeal in 2002, the Court of Appeal awarded Railtrack no costs despite the fact that Mrs Dunnet failed in her appeal principally because despite views expressed by a Lord Justice at a hearing before the appeal encouraging the use of ADR, Railtrack turned down flat an offer to go to ADR. The views of the court in relation to "compulsory" ADR were to be some extent modified in the case of Halsey v Milton Keynes General NHS Trust decided in 2004 and in Hickman v Blake Lapthorn decided in 2006. In the Hickman case in particular it was observed that a party cannot be ordered to submit to mediation as that would be a breach of the European Convention of Human Rights. A party who is unsuccessful however might be able, according to that case, to mitigate the normal award that would be made against them if there had been a refusal to go to ADR by the successful party and that refusal was unreasonable. While the onus would be on the unsuccessful party seeking to mitigate the award of costs to demonstrate the position, the court observed the prospects of a successful mediation were a relevant factor to take into account, as was the fact that one party may well have refused to go to mediation despite encouragement from the court.
In 2005 in the case of Burchell v Bullard the position was put this way:-
"Halsey has made plain not only the high rate of a successful outcome being achieved by mediation but also its established importance as a track to a just result running parallel with that of the court system. Both have a proper part to play in the administration of justice. The court has given its stamp of approval to mediation and it now the legal profession which must become fully aware of and acknowledge its value. The profession can no longer with impunity shrug aside reasonable requests to mediate. The parties cannot ignore a proper request to mediate simply because it was made before the claim was issued. With court fees escalating it may be folly to do so."
Position in Scotland
The position in relation to the use of mediation in Scotland was considered by Lord Gill in his Civil Courts Review published in September 2009. He looked at mediation and other forms of dispute resolution devoting a whole chapter to the topic (Chapter 7) [Click here to view]. He rehearsed the background to the use of mediation making reference to the extent of which mediation had been referred to in the court rules in Scotland to date. In fact the rules make limited provision in Scotland for mediation. To the extent there are rules they tend to be in family cases though the commercial rules in the Court of Session make reference to the possibility of alternative dispute resolution.
Lord Gill noted that both the Court of Session Rules Council and the Sheriff Court Rules Council had considered the issue. The Court of Session Rules Council recommended a specific recognition of the role of ADR while the Sheriff Court Rules Council had proposed a rule that encourages the issue of mediation but was not compulsory.
Lord Gill in his recommendations felt that more information should be given about ADR and mediation. In the protocols and active judicial case management which he proposed as part of his reforms he observed there would be opportunity for Judges and Sheriffs to encourage parties to consider alternatives to litigation. He however did not think that "compulsory" alternative dispute resolution was appropriate. As well as raising the awareness of ADR Lord Gill observed that if that was to be more used Government support for mediation in a financial sense would be necessary.
Criticism of Mediation
The use of mediation to settle court actions is not without criticism. There is a tension between requiring parties to mediate and the rights under the European Convention. That tension is recognised in the EC Mediation Directive. While the use of mediation or alternative dispute resolution may free up judicial resources, as Lord Gill acknowledged there is the risk that if complex and commercial disputes are resolved by mediation then the development of Scots Law might be harmed. Scots Law in some areas has played a significant part in the development of legal issues (such as a number of cases decided by the late Lord Macfadyen in respect of adjudication).
Perhaps as significantly some observers have suggested that the use of mediation to make the "litigation process" quicker and less "unpleasant" is actually a threat to civil justice. Dame Hazel Genn in the 2008 Hamlyn lectures was outspoken in her comments in this regard, views which she repeated in a debate that took place a year later with Lord Woolf in his capacity as the Master of the Rolls. In England she suggested "we are witnessing the decline of civil justice, the degradation of court facilities and the diversion of civil cases to private dispute resolution, accompanied by an anti-court, anti-adjudication rhetoric that interprets these developments as socially positive." Trenchant comments indeed.
Analysing success of ADR
One difficulty in relation to alternative dispute resolution and mediation is the extent to which it is in fact successful. Much of the evidence is anecdotal.
However, in relation to construction cases the Centre of Construction Law & Dispute Resolution in England has published an interesting paper entitled "Mediating Construction Disputes: An Evaluation of the Existing Practise".[Click here to view]
While some care needs to be taken with this paper because it relates to construction cases and construction cases in England where the rules are different, the paper contains some interesting information. There still appears to be much more use of conventional negotiation rather than mediation to settle matters. The survey information gives quite different results, not surprisingly, between cases which have gone to trial and other cases. However generally the use of mediation appeared to be based upon the parties' own desires rather than its use being imposed upon them. The survey suggests perhaps not surprisingly, that cases where the use of mediation was voluntary were more likely to settle. Of those "pre-trial cases" which settled, in many instances the parties believed the cases would have settled in any event. The survey gave interesting views of the savings made and also the stage at which mediation was attempted. The most popular times were either when the pleadings being exchanged or shortly before trial.
Conclusion
So far as Scotland is concerned we are obviously at an interesting stage in relation to "official" support for mediation and other forms of alternative dispute resolution. While it is not clear when Lord Gill's report will be implemented and indeed whether it will implemented on the whole there is broad support for the report. It seems likely therefore that support will extend to the use of mediation which may result in greater impetus for what appears to be a growing process under Scots Law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Arbitration Options Post Brexit - David Breslin - ThinkHouse September 2016 (Video)
