The report then identifies 27 recommendations as to how this can be achieved. The recommendations can be categorised as:
- Case Management: The primary recommendation in the report is "that a degree of compulsion should be built into the system to encourage parties to consider mediation. Where mediation is appropriate, parties should be required to attend a mediation session before their court or tribunal case can proceed". To ensure that only appropriate cases are required to do this, the report envisages that litigants should be able to apply to the court for a special cause exemption from that duty. To normalise the use of mediation in civil disputes and ensure uniform availability across Scotland's courts and tribunals, the report envisages a coordinated case management approach, with appropriate administrative capacity is needed. The case management system would be managed by an Early Dispute Resolution Office (EDRO). A mediator "roster" would be introduced, to be used by the EDRO in making referrals, or parties could choose their own mediators.
- Funding: the recommendations on funding are based around the type and value of the disputes in question. The report states that "all parties regardless of their financial resources must be able to mediate their dispute. Consequently, there must be proper funding for low-value cases and for medium to higher value cases, the cost must be proportionate and set at a level which incentivises the use of mediation". The report also recommends that Mediators should be remunerated for their work rather than relying on the supply of "pro bono" mediators.
- Standards, Regulation and Professional Rules: the recommendations are aimed at ensuring there are robust minimum standards and accreditation requirements for admittance to the roster; and an effective and accessible complaints and disciplinary procedure for mediators. The report also recommends that as part of the Scottish Civil Justice Council rewrite of court rules, rules should be introduced to place a duty on sheriffs and judges to encourage mediation unless there are good reasons for not doing so.
Legislation: the report recommends that Primary legislation in the form of a Mediation Act should be introduced. This would place a duty on Scottish Ministers to promote the use of mediation; set out a regulatory framework for roster mediators; set out the grounds for special cause exemption; formalise principles; provide definitions; endorse the components of a code of practice for mediators; provide for confidentiality in mediation; and signal a paradigm cultural shift for dispute resolution in Scotland
- Education and Training: the report recommends that there must be a co-ordinated effort to encourage a change in culture, which ensures that mediation becomes a normal way, except in cases that are eligible for special cause exemption to resolve civil disputes in Scotland. Education and training of the professionals involved, together with professional practice rules and guidance, are the primary tools for achieving this.
- Awareness Raising: the report recommends that efforts are also needed to achieve a broader cultural shift to mediating disputes, where appropriate, in Scotland. It suggests there is a need to build awareness of the benefits of using mediation and to encourage better dispute resolution choices by individuals, businesses and public and other bodies.
Scottish Government Response to the Recommendations in the Report/Margaret Mitchell MSP Private Member's Bill
The Scottish Government thanks Scottish Mediation and the Expert Group for their proposals for a significant package of reforms aimed at "normalising" the use of Mediation in the civil justice system in Scotland.
The Scottish Government also recognises the significant work done by Margaret Mitchell MSP in developing ideas to encourage the greater use of Mediation in the civil justice system in Scotland.
The Expert Group report proposals are a detailed examination of the issues and imply a "multi–door courthouse approach" to civil justice where the parties involved in a dispute can access a suite of dispute resolution options to try to resolve disputes using the most appropriate processes for them. Several respondents to the Margaret Mitchell Private Member's Bill commented that they would like to see the proposed Private Member's Bill go further and take on board the proposals made in the Scottish Mediation Expert Group report.
Whilst the Expert Group report is an in-depth report; and Margaret Mitchell's proposed Bill has added to the debate, the Scottish Government believes that this matter has to be dealt with as a whole system approach. There needs to be systematic reform in a number of areas to overcome the structural and cultural challenges currently preventing the normalisation of Mediation in the civil justice system in Scotland.
The Scottish Government will give careful consideration to Margaret Mitchell's proposed Bill if and when it is formally introduced into Parliament. We are clear from listening to the mediation community, however, that, any legislation will require to tackle all of the issues simultaneously to bring mediation into the mainstream and that reform short of this may have limited effect in practice.
The Scottish Government intends to take some time to examine the Expert Group proposals, in parallel with the proposals contained in Margaret Mitchell's Private Member's Bill, to assess the impact of the proposals on the general public, businesses, the legal profession, and the overall justice system.
The Scottish Government policy on dispute resolution is currently being developed on a collaborative basis with key stakeholders including the Law Society of Scotland and the Faculty of Advocates within a "Collaborative Partnership on Dispute Resolution". The direction of travel is for an integrated approach to helping citizens resolve their disputes in the most proportionate way, but with the right of access to Scotland's courts always preserved. A critical element of this (which was proposed by the Scottish Mediation Expert Group) is the creation of an Early Dispute Resolution Office to triage appropriate court cases away from unnecessary litigation.