Mediation ready to play a bigger role in Scottish civil justice

Charlie Irvine

Hosted by University of Strathclyde Mediation Clinic and Scottish Mediation, with support from the Scottish government, the event explored how Sheriff Court and, ultimately, Court of Session cases could benefit from the routine use of mediation.

The discussions were anchored in examples from around the world and the growing success of mediation in simple procedure.

A number of English-speaking jurisdictions are moving decisively towards mediation – driven by mounting court delays, pressure on legal aid, and growing evidence that early resolution delivers better outcomes for clients. Speakers from Ireland, New Zealand and England & Wales set out clear evidence: mediation improves access to justice, cuts costs and delay, and produces more durable solutions than litigation. In some countries it now accounts for a significant share of legal practice.
Scotland’s own experience supports this.

The symposium heard that simple procedure provides a compelling proof of concept: when judicial encouragement is embedded and mediation is integrated into court processes, uptake and settlement rates rise rapidly. Close to 15 per cent of all defended actions are now referred to mediation with a settlement rate of around 70 per cent. Participants agreed that similar approaches could be extended to Ordinary Cause and commercial actions, with substantial benefits for consumers, businesses and the courts.

Several key messages emerged:

• Mediation becomes mainstream when courts are empowered to encourage it, procedural rules support early referral and meaningful cost consequences apply.
• Scotland’s simple procedure offers a proven model for rapid uptake when mediators and sheriffs work in partnership.
• Cultural and structural barriers persist – from adversarial habits to limited awareness – but none are insurmountable.
• There is nothing to prevent Scotland emulating other jurisdictions where mediation is routinely used in higher-value and more complex disputes.
• A Scottish Mediation Act could provide the legislative backbone needed for sustainable, systemwide progress.
  Participants agreed that Scotland now has a rare opportunity: to build on clear evidence of success and embed mediation at the heart of a modern, user-centred civil justice system.

Charlie Irvine, director of University of Strathclyde Mediation Clinic said: “It was invigorating to hear such a rich and well-informed discussion; I think we were all struck by Mark Kelly’s description of mediation as ‘now the default’ in Australia. It’s clear that the judiciary, the legal profession and senior policymakers are well aware of its potential, and the question is how to take that forward in practice. We plan a follow up symposium next year.”