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Bringing Mediation into the Mainstream in Civil Justice in Scotland

Bringing Mediation into the Mainstream in Civil Justice in Scotland

Last week, Scottish Mediation published a report titled “Bringing Mediation into the Mainstream in Civil Justice in Scotland”.

As many of you will know, mediation is a process for resolving disputes. An important point to note about the process is that the mediator does not make a decision for the parties, but rather assists in facilitating discussions between the parties to enable them to self-determine a resolution between them.

One thing that is clear from the report by Scottish Mediation is that change is required. Scotland needs to adopt a more proactive approach in order to provide a viable route to ensure that more people are enabled to mediate their civil disputes. Hoping things will change is not a sustainable policy.

In order to normalise the use of mediation in the civil justice system in Scotland, the report identifies a number of challenges, and it also makes recommendations as to how to overcome those challenges. One such recommendation is that a degree of compulsion should be introduced into the system to encourage parties to consider mediation.  If mediation is appropriate, the report recommends that parties should be required to attend a mediation session before their court or tribunal case can proceed.

Insofar as family cases are concerned, it may be that the Scottish Government could adopt a similar approach to that in England & Wales by introducing a Mediation Information and Assessment Meeting (MIAMs). South of the border, in family cases, a person has to attend a MIAM with a mediator before that person can make an application to a court for certain orders.  There are of course exceptions to this.  In short, the MIAM is essentially to assess whether mediation could be used to resolve the issues without having to go to court.

Last year, as you will recall from one of our previous blogs, the Scottish Government launched a consultation on a review of part 1 of the Children (Scotland) Act 1995. One of the questions within the consultation paper was: should the Scottish Government do more to encourage Alternative Dispute Resolution in family cases?  A review of the responses to that consultation was published on the Scottish Government website at the end of May this year, and from those that answered the question, 92% answered “yes”, and interestingly 41% were of the view that MIAMs should be introduced in Scotland.

It will be interesting to see what happens following on from the Scottish Mediation report, and the consultation responses. Will legislation in the form of a Mediation Act be introduced as recommended in the Scottish Mediation Report?  Will new court rules be introduced?  We will have to wait and see.

Mediation is a method of dispute resolution that we champion, and a number of our family lawyers are accredited mediators. Across our family law team, we are seeing a growing trend of people who want to find a constructive resolution to their situation through mediation.  To find out more about the mediation process, please contact any member of the family law team.

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