UK: Mediation and The Courts in Scotland

Last Updated: 11 May 2010
Article by Murray Shaw

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.


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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.