Will a new Bill make mediation mandatory in Scotland?

Consultation has now closed on a new Bill which seeks to make it mandatory for parties involved in civil cases to engage in mediation in the first instance.

While the Bill itself doesn’t seek to apply the proposals to the realm of employment law, a related report has called for mediation to be used to resolve disputes which would otherwise end up in court.

Let’s take a look at what the Bill is proposing and the potential ramifications in employment dispute cases.

What is mediation?

Mediation refers to the process whereby an independent and impartial person helps two or more individuals engaged in a dispute to negotiate a potential solution to the problem in a confidential setting. It is the mediator’s role to assist the parties through the process; however, it is ultimately down to the parties, not the mediator, to decide on the terms of any agreement.

NB: This is different to Early Conciliation, where the conciliator plays an active role in the conciliation process and can put forward a solution to end the conflict.

Individuals can either take it upon themselves to engage in mediation or they can be referred to mediation by a court. The outcome of mediation is not legally binding, without further steps being taken by the people concerned.

There are various kinds of mediation:
  • Facilitative – where the mediator facilitates a dialogue between the parties;
  • Evaluative – where the mediator has some input and can weigh in on the merits of the dispute; and
  • Transformative – where the mediator’s role is to help the parties repair their relationship.
In Scotland, mediation is used in relation to families; neighbours and communities; consumers; education; additional support needs, and employment.

What does the Bill propose?

The Mediation (Scotland) Bill would make it mandatory for parties involved in civil disputes to consider the use of mediation. It proposes to introduce a process of court-initiated mediation, involving a statutory duty mediator, where litigants would be required to complete a questionnaire at the outset to determine whether the dispute is suitable for mediation.

However, the Bill excludes certain matters from its provisions, where “another procedure is prescribed for the determination of that type of dispute”. In particular, it excludes “employment disputes which are governed by statutory dispute-resolution processes”. This refers to the Acas’ Early Conciliation process, which takes place at the beginning of any claim and which both parties must freely opt to participate in.

That said, possible extension of the mandatory mediation process in the long-term is discussed as a possibility, with MSPs being given the opportunity to expand the coverage of the Bill over time, and the scope and potential application of the proposed measures has yet to be settled. 

The question, therefore, is whether introducing mandatory mediation is necessary, or indeed desirable, in relation to employment law. Of note, in June 2019, Scottish Mediation published its own report on the mediation process, which does not exclude employment disputes. It is reasonable to assume that this report, which is more detailed and far-reaching than the consultation Bill itself, will be taken into consideration when reviewing the Bill going forward.

Why now?

Developments in mediation have been on the horizon for some time, with a 2018 report of the Justice Committee of the Scottish Parliament recommending changes in Alternative Dispute Resolution (ATR) and that Scotland should adopt similar procedures already in place in Northern Ireland, England and Wales (in limited circumstances).

This consultation Bill differs from this report in that its scope is wider and it stops well short of being compulsory. It carefully sets out its intention to preserve the fundamentally voluntary nature of mediation discussions but states that parties will have to at least consider the possibility of mediation and attend a Mediation Information Session with a court-appointed duty mediator. However, if the parties do not wish to continue past this point, they would not be required to do so.

What does the Bill aim to achieve?

The consultation Bill sets out the practical context for its proposals and discusses the benefits of mediation. These include:

  • Giving parties greater control in dispute resolution;
  • Cost reduction;
  • Speedy resolution;
  • Convenience and flexibility; and
  • A high rate of compliance and satisfaction.

Added to this, it identifies existing issues which it believes a robust mediation system will address. These include:

  • A lack of consistency from judge to judge as to how often mediation is used;
  • A lack of infrastructure and direct access to mediation services from court to court;
  • Heavy reliance on pro-bono and voluntary mediation; and
  • The lack of any single oversight body with responsibility for mediators.

Arguably, of these four points, only the first is potentially applicable in an employment law context (it may be the case that there is a lack of consistency between judges on how mediation is used). However, this issue could be resolved by training and incentives to make greater use of the existing mediation procedures. Regarding the remaining three points, as Employment Law dispute resolution begins under the oversight of Acas and then ends up in the hands of the Tribunal, a lack of infrastructure or access to services doesn’t seem to be an issue; mediation in this context is not pro bono or voluntary as it can be carried out through the Tribunal service; and there is already sufficient oversight through the Tribunal service.

Importantly, the Bill does not address the practical issues of setting up a full mediation body and achieving the structural change required to accommodate this. Furthermore, it does not address whether any of these changes could be achieved through less drastic means (for example, by training judges in mediation and encouraging them more heaving to make use of mediation services). These more specific considerations are understandably somewhat outside of the scope of the Bill at present; however, it would make sense to weigh these practical considerations against what the Bill is intended to achieve.

In any case, mediation, as with other forms of alternative dispute resolution (ADR), has been shown to have great benefits when used appropriately, and in an employment law context, judicial mediation is utilised where it is believed it may be beneficial.

What does the report say?

The recent report published by Scottish Mediation states that parties should be expected to engage in mediation in the first instance and would have to have a valid reason (from a prescribed list of acceptable reasons) in order to avoid doing so. In addition, the report explains in more detail how solicitors and other legal professionals should be trained in mediation to facilitate the proposed changes.

Where does this leave Early Conciliation?

The key element of the report is that while the Bill expressly excludes employment law, the report does no such thing. In fact, taking the report as written, it proposes that the provisions of the Bill should be extended to employment law. While it doesn’t expressly state that mediation would replace Acas Early Conciliation, the question arises as to how the two could coincide without major changes to the latter. Indeed, should a system of mediation (as proposed) be adopted into employment law, it’s speculated that this would in fact replace Early Conciliation.

Acas published its Annual Report in July of this year, which highlights a high demand for Early Conciliation. There have been 133,000 requests for Early Conciliation in the past year, 97.1% of which were requested by the employee in a given case. Following this Early Conciliation process, 26.8% of cases saw claim forms submitted to the Employment Tribunal. This means that in almost three quarters of cases, engaging in Early Conciliation led to disputes being settled prior to litigation, or the party raising the issue chose not to engage in the Tribunal process. Acas also offers mediation services itself, and reports that it assisted with 270 mediations in 2018-19, 80% of which successfully reached a full or partial agreement.

How will mediation work in practice?

The Bill proposes that solicitors should be trained in mediation in order to assist their clients with the proposed process. However, there Scottish Mediation’s website reveals that there are 45 accredited mediators specialising in workplace and employment dispute in Scotland, and the Law Society’s website shows 1,246 individuals.

This means that in order to adopt the Report’s proposed approach in employment law, 45 mediation specialists would need to provide training to 1200+ legal professionals, not to mention Trainee Solicitors, Paralegals and non-practising Solicitors. With this in mind, the logistics and cost of implementing this proposed change would see a complete overhaul of the current system, which would likely be burdensome on modern law firms and their employees. The Report also notes that those who provide mediation and/or training on mediation ought to be well paid for doing so, and it is odd to see a proposal that stipulates a level of remuneration be included within legislation

So, it is a good idea?

Given the contents of the Acas report, Early Conciliation is arguably preferable to the proposed mediation process. Early Conciliation gives both Claimants and Respondents the opportunity to enter into settlement discussions if they wish do so. Ultimately, one of the key aspects of mediation is that both parties wish to engage with one another on this basis. Making mediation mandatory (or close to it) seems counterintuitive given its voluntary nature.

Ultimately, where an employee raises what the employer believes is a vexatious claim, there is simply no appetite to mediate, and forcing this point will likely only serve to delay the process at a higher cost to employers. Given the existence of vexatious claims, it is advantageous to employers to have the option not to engage in the Early Conciliation process.

Hussain Kayani

Senior Employment Law Adviser, Glasgow

Expert Comment

While some areas of law may benefit from an increase in ADR presence, it’s likely that employment law will not, and I’m not convinced from the nature of the proposed system and the issues which it sets out to resolve that it will provide any benefit that cannot be achieved through the Early Conciliation system as it stands. Early Conciliation, while more adversarial than mediation, is the most appropriate solution for employment law, with demonstrable results. Any process which modifies or replaces it must therefore clearly set out why it is a superior mechanism, for both employers and employees.