In a substantial report, canvassing a range of issues, the Expert Group on Mediation in Civil Justice in Scotland has reviewed the position of mediation in Scotland and proposed reforms to “normalise” the process and change the culture of dispute resolution as a result. It will be of interest to anyone with an interest in mediation and ADR.
One of the controversial topics that we have commented on before is the question of whether mediation should be compulsory. The Report concludes that it should. Perhaps for too long the “alternative” in Alternative Dispute Resolution has been emphasised. It was said that the court process is so slow, so expensive and so unpredictable that it is better to seek an alternative such as mediation. Instead the authors recognise the importance of the court process. They say:
“A key benefit of raising a court action is that by signalling their intention to formally pursue a claim, it allows one party to leverage the authority of the court to ensure the other party engages in the process. For mediation to be a viable pathway to resolution, it must be possible similarly to use the court’s authority to draw parties into the process.”
Access to justice
Central to the Reports objectives is changing the culture of dispute resolution. This obviously a laudible aim. The more subtle objective is the “normalisation of mediation”. The first step is said to be ensuring that the legal and lay professionals who enable and support parties to access the civil justice system are appropriately trained on mediation. as noted in the Report:
“The Scottish Consumer Council noted in 2001 that the extent and nature of the inclusion of mediation as part of the law degree curriculum varied between universities, and this is still the case: key interviewees for this report noted that mediation and wider DR still tend not to be core modules on a law degree.”
Changing legal profession
This observation reflects one of the challenges for the legal profession. The law degree courses still tend to teach “the law”. However the business of law into which graduates are entering is fast changing. The interface of law, computer science and AI will change some aspects of legal practice forever. For those studying mediation, the process of mediation is relatively simple. Mediation is a consensual, confidential discussion facilitated by a third party with a view to reaching a settlement. However to properly understand mediation, students need to understand the importance of positions and interests, emotion and heuristics, psychology and reality.
Interestingly the role of members of the public in changing the culture of dispute resolution is dealt with towards the end of the Report. The recommendation is that there should be an online self‑help ‘portal’ to direct people towards the possible options for resolving their disputes. Perhaps this should have been given greater prominence. Lawyers (the first group considered in the Report) are notoriously slow to change when simply urged to do so. However client demand can result in swift and dramatic changes to working practices. If members of the public and business people knew of the simplicity and benefit of mediation as a process, they might push the legal profession in to much faster adoption.
The Report is a valuable contribution to the discussion, and only time will tell whether the reforms proposed are implemented.