In the space of a couple of weeks big changes have been announced for Civil Justice in the UK.
In Scotland Victims and Community Safety Minister Siobhian Brown launched an expansion of mediation in Sheriff Courts across Scotland. Free mediation services, backed by more than £250,000 of Scottish Government funding in 2023-2024, are available for civil disputes involving sums up to £5,000, with hundreds of cases referred to the hubs every year. Examples of such disputes include those involving goods and services, building work, unpaid bills, employment and vehicle disputes.
The services offer those who are eligible an opportunity to negotiate a mutually acceptable resolution to their civil dispute, reducing the stress, cost and time of going through a court process.
Mediation hubs already exist in 22 sheriff court areas – 18 are delivered by the University of Strathclyde Mediation Clinic and four by Edinburgh CAB Mediation Services. The expansion will see the University of Strathclyde Mediation Clinic open a further 17 hubs across the country.
The minister commented “Civil disputes, especially when they end up in court, can be costly and time-consuming for those involved and can affect individuals, communities and organisations. Mediation within the civil justice system offers the opportunity for a more flexible and affordable way to resolve those disputes.
“The expansion of the availability of mediation services will widen access to justice for citizens and businesses consistently across the whole of Scotland.”
In England and Wales in a legal case Churchill v. Merthyr Tydfil County Borough Council  EWCA Civ 1416 the appeal court reversed a previous legal principle that said forcing unwilling parties to mediation infringed their right to access court. The ruling allows proceedings to be stayed in order for parties to engage in processes such as mediation.
The ruling is important as it allows judges, where they see fit, to refer a case to mediation, based on the circumstances of the case. It is not a blanket approval of the referral of all cases to mediation but one which applies where the circumstances of the case warrant it. Previously there had been concerns that a referral to mediation might breach article 6 of the Human Rights Act. This ruling clarifiers that.
In addition with the scheduled introduction of mandatory ADR (including mediation) for small claims cases in England and Wales and talk of moves to do similar in other cases types, it will be interesting to see how the UK parliament regard such proposals.
The contrast between Scotland and England and Wales seems both to be around whether or not mandatory mediation will be used and the extent to which other cases types will be encouraged to use mediation.
Common to both jurisdictions however is that mediation bodies are examining Practice Standards and Codes of Conduct to ensure that they are both fit for purpose and provide comfort to users of mediation and that their mediators are properly qualified. If something does go wrong that there should be suitable systems of redress available to the users of mediation.
In Scotland there are a number of further areas where the wider use of mediation would make sense. One of those is in Ordinary Cause Cases, with case values between £5000, and £100,000 it is the case that to pursue a case can exceed the amount awarded. In construction failure to resolve cases can lead to Firms’ financial viability coming into question. There are many other areas where a wider use of mediation would make sense and I think following Churchill those opportunities will be looed at more closely.