2009 Civil Justice Review – Scotland
This page contains an outline of this research, and a summary of the key findings. Details of how to find the full report can be found at the bottom of the page.
Title
Lord Gill’s “Civil Courts Review”.
What is it about?
The review began in 2007. Its aims were to review the provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods, and in particular to consider the cost of litigation; the role of mediation and other methods of dispute resolution in relation to court process; the development of modern methods of communication and case management; and the issue of specialisation of courts or procedures. The report was published on 30 September 2009.
Who did it?
The review was conducted by the Lord Justice Clerk, the Rt Hon Lord Gill, assisted by a project board and policy group.
Key findings
The report makes a number of recommendations regarding the structure and function of the civil courts. Of particular relevance to ADRnow are the recommendations relating to the use of mediation and other dispute resolution mechanisms within the courts.
During consultation, the review found a predictably mixed response to the question of whether courts should be regarded as the last resort for resolving disputes after all other suitable methods of dispute resolution have failed. Litigants appeared to have a more positive attitude towards mediation and other forms of ADR than respondents from the legal profession, possibly suggesting that “litigation is not providing all that people seek by way of dispute resolution processes and that there is a desire for the civil justice system to provide a broader range of options.”
There were also mixed views on the question of whether there should be specific sanctions in expenses when mediation had not been considered by parties, although there was clear consensus that mediation must be entered into voluntarily, and that it was not appropriate for the court to compel parties to attempt to settle their dispute by mediation.
Specific recommendations regarding mediation and ADR include:
- advisers and agencies who provide first-line advice should be aware of all the dispute resolution options that are available;
- information websites and leaflets should be developed; court staff should be able to inform litigants.
- guidance for judges and sheriffs; no costs sanctions for refusing mediation;
- parties not required to justify not using mediation;
- development of a mediation service for claims under £5,000, free or for a nominal charge (similar to that available in England and Wales for small claims);
- development of a telephone helpline for mediation, possibly linked to the Scottish Mediation Network register of mediators;
- ensuring that parties to lower value claims have access to independent advice about their rights, so that they can make a properly informed choice.
Comment
This far-reaching review of civil justice in Scotland has drawn on, and learned from, developments in England and Wales as well as other jurisdictions. Interestingly, the report departs significantly from the approach to mediation taken in England and Wales, in particular in rejecting the adoption of court rules for sanctions for refusing to engage in mediation and for requiring parties to justify why they did not engage in mediation:
“These, in our view, are not proper matters for the court to raise. There is case law in England and Wales where the conduct of parties in relation to mediation has been found relevant to the awarding of costs. We would regret it if such an approach were to become a feature of litigation in Scotland.”
November 2009
