THE SCOTTISH Government is to commission another public consultation on proposed changes to the justice system after an expert panel earlier this year recommended that much greater use be made of mediation to resolve disputes that would otherwise end up in the courts.

Professional body Scottish Mediation carried out an independent review of the use of mediation in the civil justice system during the first half of this year, reporting its findings to government in June.

As part of that the panel, which was co-chaired by mediator and Collaborative Scotland founder John Sturrock QC and Anderson Strathern partner Alun Thomas, proposed the introduction of “a more proactive approach to deliver a viable pathway to mediate civil disputes”.

Noting that mediation is “a tried and tested process for resolving disputes”, the report stated that “various recent developments and reforms within the civil justice system provide an ideal opportunity to consider how the use of mediation might be increased”.

It made a number of recommendations for achieving that, including introducing a minimal degree of compulsion to ensure parties engage in mediation rather than moving straight to litigation and making funding available to cover the cost of lower-value claims.

The Scottish Government, which is already consulting on proposed changes to the legal aid system as well as the way the legal profession is regulated, issued its response to the Scottish Mediation report this week, with community safety minister Ash Denham noting that it would carry out a public consultation before committing to any changes.

“Now is the time for serious consideration of action to change the way in which mediation is viewed and deployed within the civil justice system as it is clear that mediation should have a bigger role to play in helping citizens resolve disputes,” she said.

“The [Scottish Mediation] report makes 27 recommendations, including a presumption to attend a mediation session, the establishment of a case management function within an Early Dispute Resolution Office and a recommendation for a Mediation Act.

"These proposals are aimed at ‘normalising’ mediation within the civil justice system in Scotland and highlight structural and cultural challenges that should be overcome.”

Acknowledging that “there needs to be systematic reform in a number of areas” before the use of mediation can become commonplace, Ms Denham said the Government has deemed it “necessary to expose those matters in a public consultation”.

In particular, the Government will be seeking views on whether mediation should be used at all in cases involving domestic abuse, sexual violence or gender based violence, something Ms Denham said she remains “highly sceptical” about.

As a first step, a dispute resolution delivery group will be convened at the beginning of next year to look at issues such as how an Early Dispute Resolution Office would work in practice, how mediation would fit in with the wider dispute resolution infrastructure and what standards would be required of mediators.

The public consultation will be issued once that group’s work is complete with the aim, Ms Denham said, of “building consensus on the way forward for mediation and wider dispute resolution reforms in the civil justice system in Scotland in 2020”.

Mr Sturrock welcomed the acknowledgement in the Government’s response that systematic reform will be required in order for mediation to be fully integrated into the justice system.

However, he noted that parties involved in legal disputes should consider using mediation now rather than waiting for a potentially lengthy consultation process to conclude.

“The [Government's] emphasis on a whole-system approach is important as this is about how we do things more generally in dealing with disputes which arise, encouraging speedy resolution, cost effectiveness and collaboration, and restoring decision-making to the people most affected,” he said.

“However, it is also important that progress is made expeditiously. Week in, week out, I work as a mediator with people and businesses who have spent disproportionate amounts of money and time on legal claims. Nearly all manage to reach a solution in one day of mediation. They are very frustrated by the system’s failure to help them to get results much earlier.

"There have been numerous reports by various groups over the years, all recommending greater uptake of mediation. I hope that some steps will be taken now rather than after many months of further contemplation. And we must not rely only on the Scottish Government and Parliament. There are many other stakeholders who can take action immediately.”