Justice Committee backs alternatives to court

01.10.2018

Holyrood’s Justice Committee is backing increased use of Alternative Dispute Resolution (ADR) methods such as mediation and arbitration as an alternative to civil courts.

The Committee is calling for better and more consistent information about ADR to be given to solicitors’ clients, and the public more widely, before they enter into legal disputes. Although the report recognises that ADR may not be appropriate in all cases, particularly in domestic abuse situations, it suggests that in other circumstances, mandatory ADR information meetings should be piloted.

The Committee is also suggesting that consideration should be given to extending legal aid to cover methods of ADR other than just mediation. Similarly, it is cautioning that ADR must be accessible, and not limited by a lack of services in certain areas. To counter this, MSPs are calling on the authorities to consider how they could fund and provide more consistent services throughout Scotland.

Speaking as the report was published, Committee Convener, Margaret Mitchell MSP, said:

“The Scottish civil justice system could undergo a step change if we increase the use of less confrontational methods of resolving disputes.

“The Committee heard compelling evidence about the benefits of alternative dispute resolution methods that already exist. However, barriers of knowledge, provision and funding can all too often prevent them from being realised. The ideas set out in this report could provide a road map for the Scottish Government and legal sector to transform the delivery of civil justice in Scotland.

“While there will always be a place for formal court proceedings, there needs to be greater awareness that quicker, more cost effective and less traumatic alternatives are often available. The committee considers that there is a pressing need for further system-wide training and awareness raising for the judiciary and legal profession.

“It is the Committee’s aspiration that more people in Scotland will benefit from ADR in the future.”

Background

Main types of ADR in Scotland are:

Mediation: Mediation involves an independent and impartial person helping two or more individuals to negotiate a potential solution to a problem in a confidential setting. The people involved in the dispute, not the mediator, decide the terms of any agreement. The outcome is not legally binding, without further steps being taken by the people concerned. Mediation is used in Scotland in relation to families; neighbours and communities; consumers; education; additional support needs; and employment. People can decide to mediate on their own initiative or they can be referred to mediation by a court.

Conciliation: Conciliation is similar to mediation (and the terms are sometimes used interchangeably). However, a conciliator is more interventionist than a mediator and may make recommendations as to how to solve the dispute. Any outcome is, however, not legally binding without further steps being taken by the parties. Conciliation is used in Scotland in employment and consumer disputes, as well as in the context of disability discrimination.

Arbitration: In arbitration, a third party, who often has specialist expertise or knowledge, will decide how the dispute should be resolved. The outcome is legally binding. Arbitration is mainly used in Scotland in commercial disputes and employment disputes but can be used in family cases. The law relating to arbitration in Scotland was significantly reformed by the Arbitration (Scotland) Act 2010. The 2010 Act includes rules governing the conduct of, and procedure associated with, arbitration. It also covers a range of other issues, including the relationship between arbitration and the courts, and how an arbitration award can be enforced.

Adjudication: Adjudication is sometimes used as an umbrella term to describe some types of ADR and litigation. However, in certain types of dispute, adjudication is recognised as a particular form of ADR. An example is construction, where the Housing Grants, Construction and Regeneration Act 1996 contains a right to refer a dispute to adjudication. Certain things distinguish adjudication from arbitration in this context, including a fast-track approach. Adjudication is also used in Scotland, for example, in relation to additional support needs and tenancy deposit protection in private rented housing.

Ombudsmen: Ombudsmen are impartial ‘referees’ who adjudicate on complaints about public and private organisations. There are both public and private sector ombudsmen.

Read the papers relating to the meetings held on Alternative Dispute Resolution.

The Committee’s report is available to download.

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