Mandatory Mediation in Scotland: A Modern Necessity

Significant developments have emerged in U.K. civil justice marking a pivotal moment for mediation, particularly in Scotland.

Scotland's Victims and Community Safety Minister, Siobhian Brown, introduced a considerable expansion of mediation services within sheriff courts—the lower courts--nationwide. 

For the 2023-2024 period, the Scottish Government allocated more than £250,000 to support free mediation services for civil disputes involving sums up to £5,000. These services, which already handle hundreds of cases annually, cover a wide range of disputes, including those related to goods and services, building work, unpaid bills, employment issues, and vehicle disputes. 

The existing network of mediation hubs, operating in 22 sheriff court areas by late last year, has been expanding  significantly this year. The University of Strathclyde Mediation Clinic, in Glasgow, which runs 18 of these hubs, planned to extend its services by opening an additional 17 hubs across the country. Edinburgh CAB Mediation Services, responsible for four hubs, will continue to play a critical role in this expansion. Minister Brown emphasized the benefits of mediation within the civil justice system, noting that, it “offers the opportunity for a more flexible and affordable alternative way to resolve those disputes.” Scottish Government, “Expansion of free mediation clinics” (Nov. 20, 2023) (available at https://bit.ly/3APeFJq).

The future of Scottish family law

As family disputes continue to inundate courts, the recent push for mandatory mediation in England and Wales set a crucial precedent for Scotland to consider.

On March 23, 2023, the U.K. Government had announced plans to make mediation mandatory for separating couples in all suitable low-level family court cases, excluding those involving allegations or a history of domestic abuse. This initiative aimed to encourage couples to reach agreements regarding their children with the help of mediators, using court action as a last resort. See the government’s announcement, with a link to the subsequent consultation, at https://bit.ly/3B4TBi5. 

Ultimately, the mediation plan for separating couples wasn't implemented, but the ADR process remains a key component of addressing family law issues. Savita Sharma, "The UK government has rejected mandatory mediation for family disputes in England and Wales," Morton Fraser MacRoberts  (Feb. 2, 2024) (available here). 

Since 1996, Scottish courts had limited powers to refer parties to mediation. But significant legislative changes were witnessed through the Children (Scotland) Act of 2020, which introduced provisions for funding alternative dispute resolution and a pilot scheme for mandatory ADR meetings. Read more in the statute here.

Under Section 23, Scottish Ministers must establish a scheme to assist individuals with the ADR costs. Section 24 mandates a pilot scheme where courts can require parties to attend meetings to explore dispute resolution options before making orders under the 1995 Act. See “Mandatory mediation--will this be the future in Scottish family law?” Brodies (March 23, 2023) (available here). 

Continued developments have bolstered the case for mandatory mediation in Scotland, notably the significant expansion for the mediation hubs, making mediation services more accessible and consistent. This expansion is backed by substantial government funding aimed at reducing court burdens and promoting cost-effective dispute resolution. See plan description at “Civil procedure mediation scheme to be rolled out,” Law Society of Scotland (Nov. 23, 2023) (available here).

Commercial Leasing

This year, the mediation option expanded to leasing. 

A 2024 Discussion Paper by the Scottish Law Commission has begun to consider the viability of a mandatory mediation step for claims raised under the Tenancy of Shops (Scotland) Act of 1949. This pertains particularly to the end of leases for shops and similar premises such as cafes, pubs, and takeaways.

It follows the 2018 Discussion Paper and the 2022 Report, both titled "Aspects of Leases: Termination." While the 2022 Report recommended reforms for commercial leases in general—including those of shops, offices, industrial premises, and land for non-agricultural use—it reserved the question of whether special provisions should apply to the termination of leases covered by the 1949 Act. This new Discussion Paper proposes laws concerning the termination of such leases as part of the Eleventh Programme of Law Reform, discussed on the Scottish Commission on Law Reform website here.

The 1949 Act enables tenants in actual occupation who receive a notice to quit to apply to the sheriff court for a renewal of the lease. Renewal is excluded, however, if the tenant is in material breach of any lease obligation; the tenant is insolvent; the landlord has offered the tenant suitable alternative accommodation on reasonable terms; and, in all circumstances, "greater hardship" would be caused by renewal than by non-renewal. If the tenant qualifies and none of these grounds for refusal is established, the sheriff may grant renewal if deemed "reasonable in all the circumstances." The act, however, does not specify how courts should determine what is "reasonable."

Mediation plays a significant role in suggested reforms in the discussion paper, which include that the mandatory grounds for refusal would be clarified, and the power to grant multiple renewals would be removed. Additionally, court procedural changes are proposed, along with the requirement for the tenant to offer mediation to the landlord before applying for renewal under the reformed act.

Mediation would address the difficulties over the costs involved in applying to the court. The discussion paper notes that the time to arrange and conclude mediation may be significantly less than court proceedings, even with summary cause or simple procedure. With an earlier resolution, both parties can plan with greater certainty for their respective futures, rather than waiting months for the court's decision.

The paper proposes that it could be made a precondition of an application for the tenant to offer mediation to the landlord. The offer would include details such as an outline of the tenant's position, their understanding of the dispute, the identity of the proposed mediator, their charges and available dates, and the venue for, or mode of mediation.

By integrating mediation into the process of lease renewals, the reform aims to foster better communication and understanding between landlords and tenants, ultimately leading to more amicable and timely resolutions.

Where Do We Go from Here?

With Scotland's civil courts increasingly under strain, the introduction of mandatory mediation could offer much-needed relief.

The 2023-24 mandate letter from the First Minister to the Cabinet Secretary for Justice and Home Affairs and invoking each Cabinet Secretary outlined the priority policy commitments and detailed implementation strategies. (The Sept. 5, 2023, letter is available here). It highlighted the exigency of developing a draft model for delivering mediation services across sheriffdoms. Additionally, it called for support for the still-in-process Regulation of Legal Services (Scotland) Bill as it moves through Parliament, aiming to establish a modernized regulatory framework that ensures sustainable legal services and maintains an independent legal profession.

While some view mediation as merely a supplement to the legal process, its potential to become the primary mechanism for family dispute resolution is gaining traction. The increasing acceptance of mediation, combined with its underutilization in Scotland and proven success elsewhere, has led to serious consideration of making it a mandatory element of dispute resolution.

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For more on U.K.'s moves to mandatory mediation, see Akshatha Achar, "Integrating Mandatory Mediation: Transforming the U.K.’s Small Claims Process,"  42 Alternatives 130 (September 2024) (available at https://www.cpradr.org/alternatives-newsletter). 

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The author, a student at the Brooklyn Law School, was a 2024 CPR Summer Intern.

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