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The normalisation of mediation
December 19, 2019
The ‘Go to Mediation’ project produced a YouTube video of how a dispute between Santa and the Elves can escalate – and with mediation, resolve. Its context is seasonal, the message is straight-forward; mediation provides a quicker, cheaper and less stressful, confidential process compared with litigation at court. For another idea of what mediation can look like, please see our video.
The use of mediation is being actively considered, particularly in Scotland where the Scottish Government is to commission another public consultation on proposed changes to the justice system to prompt greater use of mediation. It follows on from the comparative Review which was previously blogged, and a Report, ‘Bringing Mediation into the Mainstream’. It seems Scotland is taking a serious look at the recommendations designed to incentivise and enable more parties to use mediation, rather than court, to resolve disputes.
The Report contains over 20 recommendations with the long-term goal of normalising mediation. Recommendation 19 reads:-
‘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 rostermediators; set out the grounds for special cause exemption; formaliseprinciples; 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’.
When the public consultation will be conducted remains to be seen given other competing interests at present.
Here in England and Wales, the cultural shift towards using mediation for the resolution of disputes continues. A snap-shot of this was captured in CEDR’s eighth biennial audit in 2018 which indicated that the number of mediations per year had increased with commensurate savings to people and businesses, estimated in 2018 as £3 billion in wasted management time, damaged relationships, lost productivity and legal fees.
The Final Report on ADR and Civil Justice, previously blogged here, identified the desirability of an increasing role for ADR in general and mediation in particular in our civil justice system. Perhaps the outcome of the public consultation in Scotland will give England and Wales further food for thought. In the meantime, the cultural shift continues, both sides of the border.
