Proposed new mediation rules for the Scottish Courts

New rules have been proposed for the Scottish Sheriff Courts. If enacted, the new rules will require parties to give consideration to the use of mediation and alternative dispute resolution (“ADR”) procedures before and during litigation, with (for the first time in Scotland) financial consequences for failure to do so. The proposals were announced last week by the Sheriff Court Rules Council (“the Council”) following a review by the Mediation Committee of the Council, which commenced in 2003. The proposals will now undergo a period of consultation.

Although the proposed rules relate only to the Sheriff Courts, senior judges have confirmed that proposals for similar rules in relation to the Court of Session (Scotland’s supreme civil court) will be forthcoming in the next few months.

The Mediation Committee made 5 recommendations, the effect of which takes the form of new rules:

• The Committee came to the view that the courts should be encouraging (but not compelling) parties to resolve a dispute by ADR before committing themselves to litigation and that new rules were needed.
• They recommended that at the outset of proceedings the claim document (known in the Sheriff Court as an “Initial Writ”) should indicate what steps had been taken to resolve the dispute by other forms of dispute resolution (whether by mediation, negotiation or otherwise) with a view to avoiding the need for litigation.
• The Committee favoured where practicable and where the costs could be met, the provision of an in-court mediation service in relation to disputes at all levels in the Sheriff Courts similar to that currently being piloted in Edinburgh, Glasgow and Aberdeen. (The Scottish Executive has already agreed to fund court mediation schemes in Aberdeen and Glasgow sheriff courts for a two year period. These will cover all types of action and are in addition to the Edinburgh sheriff court mediation scheme, which is currently limited to summary cause and small claims.)
• They suggested that Sheriffs should be allowed to hold discussions with parties in private with a view to achieving settlement of the matters in dispute.
• Finally, the Committee recommended a wider consultation process as a preliminary to the drawing up of new rules.

Key points arising from the proposed new rules include the following:

• A focus on the “speedy and efficient resolution of all matters in dispute”.
• Once litigation has been commenced, the Sheriff will have the power at any time to make an order directing parties to consider settlement of the dispute or referral to mediation or to another form of dispute resolution.
• Where such an order is made, the parties will have to complete a form either confirming their agreement to mediate or explaining why they are refusing to do so.
• Any unreasonable conduct by any party in relation to the new rules may be taken into account by the Sheriff when considering awards of expenses (costs).

In practical terms, this means parties (and in particular claimants) will have to consider mediation at an earlier stage than before, explaining at the outset what ADR steps have already been undertaken. Once proceedings are raised, any party who refuses to mediate will need to be certain they have reasonable grounds for their refusal, otherwise they will run the risk of being penalised with an award of expenses (costs).

If the new rules are introduced, and in particular if similar rules are introduced in the Court of Session, they will go a long way towards bringing Scotland’s procedure on the use of mediation into line with the position already adopted in England. It remains to be seen whether the new rules will also encourage parties (and their lawyers) to take a less confrontational approach to resolving disputes.