Simple Procedure was introduced in November 2016 for actions with a value up to £5,000. The new court rules were intended to make low value claims speedy, straightforward and economical, with parties being encouraged to explore means of Alternative Dispute Resolution (ADR).
What is mediation?
Mediation is a form of ADR. It involves an informal meeting whereby parties can express their views in private and try and reach a mutually agreeable solution. When a Simple Procedure court action is defended the court may refer parties to mediation. The action will be paused until the outcome of the mediation is known.
What happens at a Simple Procedure Mediation?
The mediator’s role is to assist parties in identifying the issues and exploring possible resolutions. The mediator is not a decision maker - it is for the parties to decide on the terms of any agreement.
Simple Procedure Mediations usually involve face-to-face meetings facilitated by a mediator.[1] Parties will typically start by speaking to the mediator separately (in adjacent rooms), followed by a direct meeting ‘chaired’ by the mediator.
Indeed, the Edinburgh Sheriff Court Mediation Service (ESCMS) reported that a clear majority of mediations facilitated by them were face-to-face, with telephone conference call a distant second place.[2] A similar story was told by the Glasgow Strathclyde University Mediation Service (GSUMS), although their interesting use of Skype in a mediation is perhaps an insight into things to come![3]
If mediation is successful, the court proceedings may be formally concluded without the need for any further input from the parties post-mediation.
What are the benefits of mediation in Simple Procedure?
Potential benefits include:
- A meeting fixed at a mutually convenient time;
- Parties being in control of the outcome – as opposed to having a court decision imposed on them;
- Helping to save or maintain relationships post-court proceedings; and
- If a resolution is reached at mediation an agreement can be concluded ‘there and then’.
At an event hosted by the GSUMC, Sheriff Livingston commented on the benefits of early resolution. He touched on the reduced court time required and the increased satisfaction for those who reached a mediated resolution when compared to those who had their dispute determined by the courts.[4] While mediation certainly has the potential to relieve pressure on stretched court diaries and budgets, if it produces results for the parties then everyone ‘wins’.
Does mediation produce results?
The published statistics tell their own story:
- GSUMC’s reported a success rate of 63% over a 12-month period from 2017-2018;[5]
- ESCMS reported a 72% success rate over a four-month period in early 2019;[6]
- An evaluation of Sheriff Court pilot schemes in Aberdeen and Glasgow showed that 90% of parties complied with agreements reached at mediation, against 67% for court orders.[7]
These high success rates may be because the parties feel included in the decision-making process, rather than having the outcome determined for them by the court.
Does mediation have time & cost implications?
Mediations require more of a time commitment from the parties - and any solicitors acting for them - than would otherwise be the case at an early stage in the case. Parties may have to take half a day or more out of their diaries, without any guarantee of success. That can be a significant consideration, particularly for the lowest value disputes or in situations where positions appear particularly entrenched.
Despite the early time and (often) cost implications, a successful outcome at mediation can result in significant time and cost savings against an outcome determined by the court after a full hearing.
Conclusion
Mediation will not resolve all Simple Procedure actions and nor will the mediation process appeal to everyone. Experiences of the process will inevitably be mixed. That said, the reported success rates, its inclusive nature and the clear judicial support for it suggests that mediation is, indeed, seen by many as Simple Procedure’s best friend.
You can read more about the process in our previous articles below.
References:
[1] Parties are presently being referred to one of the following mediation service providers:
Edinburgh Sheriff Court Mediation Service (ESCMS) - A pro-bono service run by Citizens Advice Edinburgh, primarily taking referrals from Edinburgh Sheriff Court, but now also from the court in Jedburgh and Selkirk.
Glasgow Strathclyde University Mediation Clinic (GSUMC) - A pro-bono, student led service. They regularly take referrals from sheriff courts at Glasgow and Falkirk, as well as Kilmarnock, Airdrie and Dumbarton.
All other referrals are presently directed to the Scottish Mediation Helpline (SMH), a fee-based service, although Dundee University is exploring a pro-bono mediation service at Dundee Sheriff Court.
[2] In the period February to May 2019, see ESCMS statistics 1st February to 31st May 2019
[3] See GSUMC’s Annual Report 2018
[4] See GSUMC’s Mediation Under Simple Procedure One Year On
[5] See GSUMC’s Annual Report 2018
[6] See ESCMS statistics 1st February to 31st May 2019.
[7] See Justice Committee’s Alternative Dispute Resolution, Written submission from ESCMS