2020 and The Rise of Mediation – A Scottish Perspective
Mediation has had a big year. It was always going to be, with the Singapore Convention coming into force. This saw a long-held hope made into action, of putting mediation on the international dispute resolution stage alongside the likes of arbitration. However the sad and unexpected circumstances of the Covid-19 pandemic have also opened new doors for mediation. At a time when quick, collaborative and cost-effective solutions are so needed for problems and disputes, mediation has a lot to offer. On top of that, the move for many into the virtual working world has been a catalyst for remote mediation. While courts (understandably) struggled to manage the changes Covid-19 brought, mediation adapted quickly. Over just a few months, holding remote mediations for mainstream, commercial and large-scale disputes has become culturally acceptable, even the norm.
This is no different in Scotland, where mediation seems to be much on the rise. As it happens 2020 has been called the “Year of Mediation” in Scotland (an initiative led by Scottish Mediation aiming to show where mediation makes a positive impact and to encourage an uptake in its use). But actually, mediation in Scotland has been on a substantially upwards trajectory for some time. Long term there has been a steadily increasing acceptance and use of mediation. But the last few years in particular have seen some significant developments which have signalled a growing momentum to integrate mediation into the Scottish civil justice system. Take a look back:
In March 2017 the Court of Session issued new requirements for commercial actions highlighting a change in emphasis for alternative dispute resolution. (This was in its Practice Note No.1 of 2017 re Commercial Actions, replacing Practice Note No. 6 of 2004.) In a clear signal from the Scottish judiciary that ADR was to be encouraged, the requirements included specific provisions requiring parties to consider ADR at an early stage, advise the court on the steps taken to achieve settlement and in most cases to attend a joint meeting.
In October 2018 the cross-party Justice Committee of the Scottish Parliament issued a report on ADR in Scotland – “I won’t see you in court: alternative dispute resolution in Scotland”. This followed two sessions of the Committee taking evidence from solicitors, advocates, arbitrators, mediators and family law representatives on ADR. As well as suggesting changes to address existing barriers to using ADR, the Committee suggested that mandatory information meetings and consideration of legislation similar to the Irish Mediation Act should be explored as “more fundamental changes which would facilitate a step-change in the uptake of ADR in Scotland”.
In May 2019 a consultation was published on the Proposed Mediation (Scotland) Bill, a proposal for a member’s bill to increase the use and consistency of mediation services in Scotland and to introduce a new process of court-initiated mediation including an “initial mandatory process involving a statutory duty mediator”. This would stop well short of mandatory mediation, but it was proposed this process would involve the parties attending a court action meeting with a mediator for a “Mediation Information Session”. Importantly, the process was to apply to all civil court actions (bar exclusions such as domestic abuse cases, arbitration proceedings, judicial reviews etc). Following the consultation, this was later modified to apply only to Simple Procedure cases in the Sheriff Court. It is now understood that this is unlikely to be considered before the relevant Parliamentary Committee before March 2021. By this time things may have developed again (see the Scottish Government’s position below), however the significance of a Scottish mediation bill having been proposed should not be underestimated.
In June 2019 a major new report “Bringing Mediation into the Mainstream in Civil Justice in Scotland” was published proposing a strategy to “normalise” the use of mediation in the civil justice system in Scotland as a “viable option in addition to, and often instead of, litigation”. Launched by Scottish Mediation, with work by the Expert Group on Mediation in Civil Justice and the Scottish Government, the report made 27 recommendations. These included introducing a mandatory requirement on parties to attend a session about mediation, funding options and primary legislation by way of a Mediation Act. This report pulled few punches and was unapologetic in its position that mediation can provide tried and tested benefits to the parties, as well as wider benefits to society and the economy. It saw the opportunity and benefit of a cultural shift in dispute resolution in Scotland to one which embraces mediation. The recommendations provided a wide-ranging package of potential measures, designed to make mediation “mainstream” in the Scottish civil justice system.
In December 2019 the Scottish Government issued its formal Response to the “Bringing Mediation into the Mainstream in Civil Justice in Scotland” report. Of particular note, the Response took a positive approach to increasing mediation – “it is clear that mediation should have a bigger role to play in helping citizens resolve disputes” – whilst noting that the right to access court should always be preserved; it considered that a series of questions arose out of the Report which require to be resolved before legislation is brought forward; it said that the Scottish Government would therefore launch a public consultation on mediation and wider dispute resolution reforms in 2020 and collaborate with key stakeholders within a “Collaborative Partnership on Dispute Resolution” and a new “Scottish Dispute Resolution Delivery Group” as part of developing its policy on dispute resolution; and said that the Scottish Government would give careful consideration to the Proposed Mediation (Scotland) Bill “if and when it is formally introduced to Parliament”, whilst noting that systematic reform was needed in a number of areas and that any legislation would require to tackle all of the issues simultaneously to bring mediation into the mainstream and to avoid limited effect. This was another positive step for mediation, with the Scottish Government taking a clearly pro-mediation stance, whilst the next steps were perhaps more cautious than some expected.
In 2020 the work of this Scottish Dispute Resolution Delivery Group began, described as a “Scottish Government working group charged with developing and delivering solutions to encourage the use of appropriate dispute resolution in civil justice”.
In February 2020 Scottish Mediation launched the Scottish Mediation Charter, a public statement of any organisation’s willingness to use mediation as a way of resolving disputes and to equipping its people with the skills of mediation. Various partners – a law firm, a local authority, a University, the Scottish Legal Complaints Commission, the Scottish Land Commission etc – signed up.
All of this happened before the pandemic in the UK saw a lockdown starting in March 2020. Then in April and May 2020, the British Institute of International and Comparative Law issued “Breathing space – a Concept Note on the effect of the pandemic on commercial contracts” and the follow up, Concept Note 2. These noted that the damage which can happen as commercial parties trigger default clauses can be mitigated by agreement, or by mediation “both of which must be encouraged and will have a crucial role”. In May 2020 the UK Government Cabinet Office also published guidance on “Responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency”. This stated that “The Government would strongly encourage parties to seek to resolve any emerging contractual issues responsibly – through negotiation, mediation or other alternative or fast-track dispute resolution – before these escalate into formal intractable disputes”.
Meanwhile there was a string of case law in the English courts around March and April 2020, which revitalised the principles of adverse cost awards for unreasonable refusals to engage in mediation or ADR (BXB v Watch Tower and Bible Tract Society Of Pennsylvannia & Ors [2020] EWHC 656 (QB); DSN v Blackpool Football Club Ltd (Rev 1) [2020] EWHC 670 (QB); Wales v CBRE Managed Services Ltd & Anor [2020] EWHC 1050 (Comm)).
Looking further afield, the United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Convention”) came into force on 12 September 2020. This is a major development in international commercial dispute resolution. At its core, is the concept of swift and cost-effective enforcement of international mediation settlement agreements. It creates a harmonised framework for such enforcement, avoiding the need for full court proceedings. The benefit of the Convention is not only providing this machinery to enforce settlement agreements in international mediations, but in reassuring potential mediation participants that the agreements they reach will be enforceable. It is seen as a critical step in growing and developing mediation globally.
All in all 2020 has been a huge year for mediation. But this is only the tip of the iceberg in Scotland and much more is expected to come as we head into 2021.
Jane Fender-Allison, Senior Associate & Mediator, CMS
Co-Chair of Young Mediators