Critical Reflections on the Proposal for a Mediation Act for Scotland
| Author | Masood Ahmed |
| DOI | http://doi.org/10.1111/1468-2230.12529 |
| Published date | 01 May 2020 |
| Date | 01 May 2020 |
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Modern Law Review
DOI: 10.1111/1468-2230.12529
LEGISLATION
Critical Reflections on the Proposal for a Mediation
Act for Scotland
Masood Ahmed ∗
This article critically analyses the recent proposal to introduce a Mediation (Scotland) Bill. The
proposed Bill aims to introduce a novel process of court-initiated mediation that will oblige
litigating parties to attend a mandatory Mediation Information Session. Adopting a comparative
approach with the English and Irish civil justice systems, this article analyses the key elements
of the proposed Bill and makes proposals to improve it.
In May 2019, Margaret Mitchell MSP1issued a consultation for the proposed
introduction of a Mediation (Scotland) Bill for certain civil disputes (the ‘pro-
posed Bill’).2The consultation paper explains that the two aims of the proposed
Bill are to increase the use of mediation and to increase the consistency of me-
diation services.3These aims are intended to be achieved by establishing a
novel process of court-initiated mediation that will oblige disputing parties
to attend a mandatory Mediation Information Session (MIS) with a statutory
duty mediator. Despite the obligation to attend the MIS, the parties will not be
compelled to participate in any subsequent mediation and may, if they choose,
revert to the court process.4
Although the proposed Bill is currently at the consultation stage, it nonethe-
less m arks a s igni fica nt cul ture shift away f rom the t he Gil l Revi ew’s5‘faint
praise for mediation’6and towards a wider understanding and appreciation
of the concepts of dispute resolution. This culture shift recognises that civil
∗Associate Professor, University of Leicester. I am very grateful to Charlie Irvine (University of
Strathclyde) and the MLR reviewers for their insightful comments on an earlier version of this
article. The usual disclaimer applies.
1 MSP for Central Scotland.
2 Mediation (Scotland) Bill: Consultation by Margaret Mitchell MSP for Central Scot-
land at https://www.parliament.scot/S5MembersBills/Mediation_consultation_document.pdf
(Consultation paper) (all URLs were last accessed 2 December 2019).
3ibid,6.
4ibid.
5Report of the Scottish Civil Courts Review 2009 at https://www.scotcourts.gov.uk/docs/
default-source/civil-courts-reform/report-of-the-scottish-civil-courts-review-vol-1-chapt-1–
9.pdf?sfvrsn=4 (the Gill Review).
6 C. Irvine, ‘The Sound of One Hand Clapping: The Gill Review’s Faint Praise for Mediation’
(2010) 14 Edinburgh Law Review 85.
C2020 The Author.The Moder n Law Review C2020 The Modern Law Review Limited. (2020) 83(3) MLR 614–636
Masood Ahmed
disputes can and should be resolved through avarietyof dispute resolution
mechanisms which include alternative dispute resolution (ADR) procedures,
such as mediation, as well as through the traditional adversarial court process.
It is also indicative of the increasing desire of policy makers to continue to
reform the Scottish civil justice system in line with comparable jurisdictions
such as the Republic of Ireland,7which recently introduced the Mediation Act
20178(the Irish Mediation Act), and England and Wales,9where the ongoing
civil justice digital reforms are integrating and enhancing the role of mediation
within the online civil money claims system.10
This article critically analyses the proposed Bill, including its aims and scope,
the stage at which the proposed mediation procedure is engaged, and the
structure of the MIS. In doing so, the proposals are compared with the civil
justice systems of England and Ireland, which are comparable jurisdictions
because of their respective common lawtraditions 11 and because they have each
undergone recent and significant changes in enhancing mediation within their
systems.12 It should be noted from the outset that the article is concerned with
reviewing ADR within recent Scottish civil justice reforms, providing a critical
analysis of the proposed Bill, and making recommendations to improve it, thus
contributing to the current and future developments and debates surrounding
the role and function of ADR within the Scottish civil justice system. The
recent report by the Expert Group on Mediation in Civil Justice in Scotland13
makes a series of recommendations including putting mediation on a statutory
footing. Although the Report sets out in broad terms the principles which may
underpin any future Act, it does not provide details on each of those principles
and how they would operate. In contrast, the proposed Bill provides greater
detail of the likely provisions, including how a court-initiated mediation system
would operate, and that is why the article focuses on the proposed Bill.
It should also be noted that this article does not engage with the well-trodden
ground concerning the impact mediation may have on the development of the
7 Hereinafter ‘Ireland’ and ‘Irish’.
8 Irish Mediation Act 2017 was signed into law by the President on 2 October 2017 and came
into effect on 1 January 2018.
9 Hereinafter ‘England’ and the ‘English courts.’
10 Lord Justice Briggs, Civil Courts Structure Review: Interim Report (Judiciary of England and Wales,
2015); Lord Justice Briggs, Civil Courts Structure Review: Final Report (Judiciary of England and
Wales, 2016); HMCTS Reform Programme. The Online Civil Money Claims (OCMC) is
subject to a pilot scheme, details of which can be found in the Civil Procedure Rules at Practice
Direction 51R, which includes an opt-out mediation stage.
11 Although Scotland is a slightly mixed legal system, having a Roman law basis with later English
common law influence. See A.R.C. Simpson and A.L.M. Wilson, Scottish Legal History Volume
1: 1000-1707 (Edinburgh: Edinburgh University Press, 2017).
12 See n 8 and n 10 above.
13 Bringing Mediation into the Mainstream in Civil Justice in Scotland (June 2019) at https://
www.scottishmediation.org.uk/wp-content/uploads/2019/06/Bringing-Mediation-into-the-
Mainstream-in-Civil-Jutsice-In-Scotland.pdf. In response to the Expert Group’s recommen-
dation for the greater use of mediation in civil disputes, the Scottish Government recently
confirmed that it would conduct a public consultation before committing to any changes -
see https://www.gov.scot/publications/scottish-government-response-independent-review-
mediation-scotland/.
C2020 The Author. The Modern Law Review C2020 The Modern Law Review Limited.
(2020) 83(3) MLR 614–636 615
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