Independent review of mediation: our response

Expert Group Report

The report begins by looking at the concept of mediation in civil disputes, what it is, its benefits and limitations. The report goes on to look at the present landscape of mediation in civil justice in Scotland. This is a detailed review of the current position of mediation in the Scottish courts, tribunals and elsewhere, including in the context of ongoing civil court reforms. The report identifies that provision for alternative dispute resolution in Scotland's civil court rules is growing, but that its implementation has been inconsistent and made without the necessary infrastructure to support its delivery. As a result, the use of mediation remains limited. This section also highlights the currently unregulated system of training and accreditation of mediators in Scotland by a range of bodies, noting that this could be seen as counter‑productive for the development of the profession and confusing for the general public.

The report then considers "normalising" mediation in civil justice. The report says, "hoping that things will change is not a sustainable policy. Scotland needs to adopt a more proactive approach over time in order to deliver a viable pathway to mediate disputes". In doing so, the report identifies opportunities – such as the ongoing review of civil court rules by the Scottish Courts and Tribunals Service; the ongoing review and reform of legal aid and legal services; and how this sits well with Scotland's National Performance Framework.

The report also identifies challenges, which it divides into Structural Challenges (co-ordinating uniform implementation, proportionate costs / incentivising mediation, clearer signalling of quality standards and consistent messaging in rules and legislation); and Cultural Challenges (changing professional receptiveness, building wider awareness in society and embodying a new dispute resolution culture).

Overall, the report is clear in its view that now is the ideal time to propose a new framework for the increased use of mediation in civil justice in Scotland.