Why it pays not to have your day in court

Who could reasonably be against a mechanism for resolving private disputes that avoids much of the cost, delay and uncertainty of pursuing your day in court and, ideally, leaves both parties with some dignity intact at the end?

In his 2009 review of the civil courts Lord Gill acknowledged the role mediation could play in a modernised, efficient and accessible structure. His general enthusiasm has not been developed in detail in the Courts Reform (Scotland) Bill proposals now under consultation. It reminds the courts that they can amend their rules “to encourage but not compel” consideration of forms of alternative dispute resolution in “appropriate cases”.

It is ten years since a subcommittee of the Sheriff Court Rules Council drew up draft rules for incorporating mediation into court procedures. They remain in draft.

Is mediation becalmed, or is it crouched in the wings, poised for a great leap forward?

Outside the offices of the Scottish Mediation Network in Edinburgh’s York Place workers are busy laying tramlines. It was mediation in 2011 that appeared to break the stand-off between the contractors and the project managers that had threatened to stop work in its, er, tracks while their disputes disappeared into the Court of Session.

Graham Boyack has been director of the Scottish Mediation Network since August. It is his task to build the credibility and the availability of mediation across the many areas of life where people bump up against each other but whose best interests are not served by battling in court.

“I would say in European terms we’re behind a lot of countries,” said Boyack. “Apart from the trams breakthrough, mediation doesn’t generally have a high profile so there is fairly low public awareness of what it is as a result.

“It is also the case that in a number of areas where there is a good, long history of successful mediation – like assisted needs in education mediation, family mediation and community mediation – much of it is done under the radar. In some ways it is chicken and egg. Which comes first, more people trying mediation or more publicity about successful experience of it?”

Evidence, Boyack says, can be seen in the Education (Additional Support for Learning) (Scotland) Act 2004 which was the first Scottish statute to place a duty on local authorities to have access to  a mediation service. The hope was to encourage  authorities to mediate in disputes with the families of children with additional support needs before heading to the formality of the Additional Support Needs Tribunal.

“It was a slow start but I’d say mediation is now virtually the norm where parents are unhappy with the initial decisions about their child. It is a similar story in the Scottish Legal Complaints Commission, which now actively promotes mediation as an alternative to taking every complaint to an adjudication,” Boyack said.

The Scottish Mediation Network website lists an impressive menu of circumstances where people fall out with each other – church congregations, neighbours, patients and health service providers, landlords and tenants, former partners – and in which mediation is already a prospective route to resolution, if not reconciliation. It is currently engaged in a new project in North Lanarkshire, offering mediation to parties involved in small claims actions at Airdrie Sheriff Court. There has been an in-court mediation service in Edinburgh Sheriff Court for several years. There is a slight difference between the two projects.

“In Edinburgh when the case calls the sheriff may say ‘would you like to consider mediation?’. Generally,” said Boyack, “when the sheriff asks a question like that it’s fair to say most folk realise it’s a good idea to say ‘yes’. In the Airdrie project we can try to get the parties round a table before the sheriff gets involved. We’ve had over 100 referrals there. Not many have undertaken mediation yet but the numbers are growing. On our part, we are getting a better understanding of how to approach the parties.

“What we can see is mediation generally leads to a higher level of compliance – actually fulfilling the terms of what was agreed. In small claims that’s about 67 per cent  for court-ruled decisions but in the high 80s for mediation. It’s not just that compliance rates are higher but those who have been through it generally agree that the experience is better. The research published last year by Consumer Focus Scotland on access to justice also indicated that there are ‘soft’ gains too, in terms of how the public see the justice system.”

Of course, there is another chicken and another egg to be considered. If sentiment is moving behind mediation Graham Boyack’s job, along with his colleagues, is to work on how best to make it happen.

Availability, cost and quality will be the drivers of acceptance. Where are we on those three?

The network is not a regulatory body in the same way as the Law Society of Scotland or Faculty of Advocates but has for the last two years maintained a Scottish mediation register.

“I think we have made considerable advances on quality,” said Boyack. “There’s a minimum standard that mediators have to achieve. We are in the process of taking that a step further by accrediting courses to see that they are up to the standard that you would need to get on the register; you then need to have a certain amount of CPD hours and also do a certain number of mediations where you’ve been co-mediated in order for you to be able to say ‘I am a mediator on the register’.”

The register currently contains more than 400 members. A quarter are there following negotiations with Relationships Scotland that their mediators should be included. The register lists 22 member organisations.

There are practising mediators who are not on the register, or required to be. And not everyone on the register is active.

“Some have done the training – including senators and several sheriffs – in order to acquire and sometimes apply the insights,” Boyack said. “Until it becomes more established in areas like civil justice there won’t be pull-through to get more names on the register. That having been said, I think if that did happen the system is flexible enough that it would catch up very quickly.”

He added: “We are submitting to the current consultation on courts reform. I detect a degree of nervousness in the government because it’s a new area and they don’t want to go for something that will fall over.

It may be that they might want to phase in an introduction of mediation – I can  see that working on a sheriffdom-by-sheriffdom basis. I don’t see a danger  that courts will suddenly turn to mediation and we won’t find mediators to do the work.”

Just in case, Boyack has completed his own mediator training. Has he put it into practice? “Not yet, but I am on the Edinburgh court volunteer list and looking forward to my first co-mediation.”