Scottish review of civil courts takes divergent view on mediation

A previous Policy Bite Can the court compel unwilling parties to mediate? has commented on the appetite of the judiciary in England and Wales for imposing costs sanctions on parties who 'unreasonably' refuse to consider mediating a court claim. A recent review of the civil courts in Scotland has taken a refreshingly different view of this issue and has recommended not adopting court rules allowing for such sanctions.
 
The Scottish Civil Courts Review (the 'Gill Review') began in 2007 and its final report was published on 30th September 2009. Its aims were to review the provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods, and in particular to consider the cost of litigation; the role of mediation and other methods of dispute resolution in relation to court process; the development of modern methods of communication and case management; and the issue of specialisation of courts or procedures.
 
Mixed responses
During consultation, the review found a predictably mixed response to the question of whether courts should be regarded as the last resort for resolving disputes after all other suitable methods of dispute resolution have failed. Litigants appeared to have a more positive attitude towards mediation and other forms of ADR than respondents from the legal profession, possibly suggesting that "litigation is not providing all that people seek by way of dispute resolution processes and that there is a desire for the civil justice system to provide a broader range of options."
 
There were also mixed views on the question of whether there should be specific sanctions in expenses when mediation had not been considered by parties, although there was clear consensus that mediation must be entered into voluntarily, and that it was not appropriate for the court to compel parties to attempt to settle their dispute by mediation.
 
Key findings
The review has drawn on, and learned from, developments in England and Wales as well as other jurisdictions. Interestingly, the report departs significantly from the approach to mediation taken in England and Wales, in particular in rejecting the adoption of court rules for sanctions for refusing to engage in mediation and for requiring parties to justify why they did not engage in mediation:
 
"These, in our view, are not proper matters for the court to raise. There is case law in England and Wales where the conduct of parties in relation to mediation has been found relevant to the awarding of costs. We would regret it if such an approach were to become a feature of litigation in Scotland."
 
'We do not consider that the court should have the power to compel parties to enter into ADR. This is entirely contrary, in our view, to the constitutional right of the citizen to take a dispute to the courts of law.'
 
You can read the full review here: Civil Courts Review