Mediation in Scotland: Courts are key to culture change
Emma Anstead argues for a more progressive justice system, and suggests there is much Scotland can learn from our cousins across the Atlantic.
Emma is a mediator, accredited in Scotland and Texas.
We like to think of ourselves as a progressive nation, but in relation to mediation we often seem to be decades behind the times. As the Director of Scottish Mediation, Graham Boyack, suggests in his article in the first edition of The Smeal Review entitled ‘Mediation is Making Progress’, there needs to be a change in the dispute resolution culture in Scotland before mediation can become part of the mainstream civil justice system. The Scottish Court system has a key role to play in encouraging such a shift in our culture.
The Multi-Door Courthouse
Somewhat unexpectedly, I recently spent 5 years living in Texas.
For almost five decades, Texas, along with every other US state, has operated some form of multi-door courthouse for the administration of civil justice.
The concept, which was first introduced in 1976 by Harvard Law School Professor Frank E Sander, is that before a court action can progress through the US civil justice system, the court will determine and, where necessary, provide further information on, the most appropriate method for dispute resolution. The different doors through which the case can proceed include litigation, arbitration, adjudication, evaluation, conciliation and mediation.
When the idea of the multi-door court was first introduced, the civil justice system in the US was on the brink of collapse. Experts at the time observed a litigation crisis. There had already been a dramatic increase in the number of cases being raised following the Second World War as more and more Americans migrated to cities and commerce, both between states and internationally, became more sophisticated. Disputes grew increasingly complex and prolonged.
There then followed the Civil Rights Movement and a long period of legislative reform establishing new civil rights for women, minorities, workers and consumers. The number of divorces increased dramatically following the introduction of ‘no fault’ divorce and courts became increasingly occupied with cases involving divorce, child custody and support and property division.
The courts became saturated, resulting in unprecedented delays in access to justice.
A Possible Solution?
In 1976, concerned about increasing court congestion around the country, US Chief Justice Warren Burger convened the Pound Conference, named after Roscoe Pound, a former dean of Harvard Law School. He invited some of the most famous judges, lawyers and legal scholars in the country to propose possible solutions for the widespread dissatisfaction with the administration of justice in the US. It was at this conference that Professor Sander first introduced the idea of the ‘multi-door courthouse’.
The fundamental premise of his proposal was that the traditional US justice system was not appropriate for all cases. He therefore recommended that each case should be analysed by a screening clerk as it arrived at the courthouse in order to determine which process, or combination of processes, was most appropriate for each case.
Following the Pound Conference, the US Federal Government and all States adopted some form of multi-door courthouse system as proposed by Professor Sander.
Although mediation and other forms of extra-judicial dispute resolutions methods were already in existence prior to The Pound Conference, the introduction of the multi-door courthouse concept is widely accredited as being the catalyst which brought these mechanisms to the forefront of the US justice system. By the late 1970s, adjudication was no longer seen as being the only or primary pathway to the attainment of justice and indeed the US justice system is now said to have evolved from a multi-door court system to a ‘multi-option’ civil justice system given the increasingly sophisticated knowledge and understanding of the wide range of approaches available to resolve disputes.
The US justice system has long recognised that court adjudication is not, and never has been, the epicentre of civil justice. As in Scotland, the vast majority of disputes in US society are resolved without referring to a court or a judge. Even when a dispute is referred to court, the majority of cases are settled before a full hearing and so only a tiny minority of cases are determined by a judge. It is in this context that the US civil justice system has accepted its place as a piece, albeit a fundamental piece, of the civil justice system jigsaw.
I would suggest that the situation is no different in Scotland. As scholar Marc Galanter put it, ‘justice can be found in many rooms’1. He suggests:
Just as health is not found primarily in hospitals or knowledge in schools, so justice is not primarily to be found in official justice dispensing institutions. Ultimately, access to justice is not just a matter of bringing cases to a font of official justice, but of enhancing the justice quality of the relations and transactions in which people are engaged.
Our understanding of the concept of justice is evolving. We are said to be living in a ‘post-litigation’ age in which we recognise the benefits of resolving our disputes early with a view to minimising the cost (both financial and non-financial) and time involved. In order to achieve this, we need access to a wide variety of dispute resolution mechanisms. Mediation, alongside other forms of dispute resolution, is one of these. And the Scottish Courts have a key role to play in ensuring that disputing parties have been able to consider the most appropriate mechanism for resolving their dispute.
As Graham Boyack wrote in the first edition of The Smeal Review, ‘the past two years have seen positive progress in efforts to encourage a widespread use of mediation in Scotland.’ However, one of the main reasons, he suggests, that mediation hasn’t made as much progress as its proponents would have liked during the 30 years or so since the concept was first introduced in Scotland, is that mediation may be ‘counter-cultural’ in a society which has learned to place blame and attribute fault. The current focus on adversarial dispute resolution methods in our civil justice system only encourages such a mindset. He suggests that progressive developments around mediation in civil justice would be a catalyst in promoting a longer-term shift in culture towards the greater use of mediation in society.
While many disputing parties will be well aware of the dispute resolution options available to them and will have already explored a number of them before raising a court action, many others still see court as the only option. It seems clear that the Scottish courts, like the US courts, have a fundamental role to play in signposting different mechanisms for accessing justice.
Indeed, reflecting on nearly five decades of the adoption of the multi-door courthouse concept in the US, Professor Tania Sourdin concludes in her 2015 Arbitration Law Review article entitled ‘The Role of the Courts in the New Justice System’2, that ‘a modern civil justice system involves a repositioning of courts and an acknowledgement and understanding of the breadth of the justice system. As justice is increasingly perceived as a much broader concept…the litigation system is only part of the broader justice system with judicial dispute adjudication being viewed as a far smaller, although critical, dimension of the system.’
While to some this may seem controversial, the reality is that this has always been the case. Justice has always existed outwith the courts. Disputing parties have long since found other ways to resolve their disputes either by direct negotiation or by some other dispute resolution mechanism. However, Professor Sourdin identifies that the relationship between the courts and other forms of dispute resolution is key to ensuring access to justice in a civilized society. She concludes:
The reality is that the relationship between the parts of the system that focus on dispute resolution are symbiotic – each is reliant on the other and each is required to support a just society. Institutionalized justice is supported by informal justice and informal justice requires institutions and impartial judicial determination.
In this context, it would seem unhelpful and, at the very least, confusing to refer to mediation as an ‘Alternative Dispute Resolution’ mechanism. Instead, litigation, adjudication, mediation, arbitration and negotiation should all be seen as different forms of dispute resolution which are inextricably linked.
Significant Benefits of Mediation
Scottish Mediation’s manifesto for the Scottish parliamentary elections earlier this year entitled The Time is Now3, highlighted the benefits of a culture shift towards a greater use of mediation to Scotland’s government, communities, young people and economy. Others have written about the significance of a greater use of mediation in working towards a net zero carbon civil justice system in Scotland. In an article in The Scotsman4, John Sturrock QC highlighted the potential carbon saving of using mediation, particularly when, as has become the norm during the COVID-19 pandemic, it is conducted using an on-line platform.
It is also worth noting the potential for a significant cost-saving in the administration of justice as a result of a shift towards a greater use of mediation in Scotland. Data analysed by University of Auckland Associate Professor Thomas Kuhener estimated that the US courts may be saving as much as 97% of court costs by referring cases to mediation.5
He also noted that the set up and maintenance costs for establishing a mediation system were negligible.
However, this should not just be about cost-saving. Indeed, there is a danger of viewing mediation as simply a cheap option at a time when financial resources are constrained. The real benefit is a qualitative one, in the change in culture from blame to cooperation, the shift from binary solutions to more creatively addressing problems and the restoration of decision-making to the people who are most affected, namely the parties. These are marks of a modern, progressive society.
In 2021, as a result of the COVID-19 pandemic, the Scottish Courts are facing unprecedented backlogs with some commentators suggesting that it will take more than a decade for the system to return to pre-pandemic levels.
It would be easy to draw parallels with the litigation crisis experienced in the US in the 70s.
Could the multi-door courthouse, or multi-option justice system, provide the key to unlocking the situation in Scotland?
The Core Challenge
To celebrate 20 years of Scottish mediation service, Core6, its founder John Sturrock QC together with Young Mediators7 set ‘The Core Challenge’ asking young professionals with an interest in mediation to consider ‘What one change would make a real difference and increase the use of mediation in civil and commercial cases in Scotland’. There were a number of fascinating entries, with the contributors converging on a number of themes, the most common of them being appropriate reforms in the civil court system.
Specifically, among other practical and low-cost solutions, it was suggested that the one key change that would herald an increase in the use and awareness of mediation in Scotland would be for the court rules to change so that parties would be required to demonstrate that they had at least considered mediation before raising a court action.
This is already a requirement prior to raising a commercial case in the Court of Session in Edinburgh, but the consensus was that this should be extended to all Court of Session and Sheriff Court actions.
On the face of it, this very simple idea would be easy to implement and could potentially help the civil justice system and the public purse save significant costs at a time of unprecedented pressure on public funds as well as offering the other advantages outlined above. Most importantly, it would send a significant signal to society in Scotland that a court-determined outcome is not the only option when seeking access to justice. It would also be a significant step in broadening the focus of those involved in disputes to the wider range of dispute resolution mechanisms that are available in Scotland.
If my time in Texas has taught me anything, it is that a progressive civil justice system must embrace all forms of dispute resolution. As we plan to ‘build back better’ from the devastating impacts of the COVID-19 pandemic, our court system has a key role to play in ensuring that the citizens of Scotland are aware of all the avenues that are open to them in obtaining access to justice. In relation to mediation, while its use outside the civil justice system is increasing all the time, for there to be a real culture shift towards a greater use of mediation across society in Scotland, the courts, and those involved in advising disputing parties, should embrace it as an intrinsic part of our civil justice system.
1 Marc Galanter, Justice in Many Rooms, in ACCESS TO JUSTICE AND THE WELFARE STATE 147, 161–162 (Mauro Cappelletti ed., 1981).
2 Tania Sourdin, The Role of the Courts in the New Justice System, 7 Y.B. Arb. & Mediation 95 (2015).
5 Kuhner, T.K. (2005) Court-Connected Mediation Compared: The Cases of Argentina and the United States. Roger Williams University School of Law Legal Studies Research Paper Series. Research Paper 22: 18