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Not all legal cases need to end up in court

by Derek Young, CAS Senior Policy Officer (Access to Justice).

NB This column first appeared in the Herald newspaper on 6 May 2020. 

Decades of TV and Hollywood courtroom dramas have led many of us to associate the work of the courts with intense criminal trials.

But for many people, and certainly for most people who come to their Citizens Advice Bureau, their dealings with the law are more likely to come in the form of civil cases.

While criminal cases involve an allegation that a law has been broken and the offender should be punished, civil cases are more concerned with individuals’ relations with each other, duties under contracts, or our rights to things like money or property. 

Scotland’s courts system engages more than 80,000 civil cases every year, ranging from payment of debts, compensation for personal injury, evictions, and of course family cases. Such issues might not excite Perry Mason, but they matter enormously to those involved, and are a mainstay of our legal system’s role to adjudicate conflicts without combat.

But they can also mean delay, worry and expense for those affected, which is why many people seek to settle them out of court before they even get to a hearing. And as with so many other areas of life, the covid-19 crisis is currently shining a bright light on this part of the legal system.

Since lockdown, the number of trials and hearings taking place in Scotland has necessarily been curtailed, which has led to a backlog in the system. The Coronavirus (Scotland) Act passed last month has allowed some proceedings to continue remotely, either by video-conference or tele-conference, and many lawyers have sought to bring more cases back before the courts to seek a resolution for their clients.

But in recent weeks the Citizens Advice network has seen a renewed interest in other ways of resolving disputes, notably mediation. Not only can mediations proceed remotely in the same way as courts, but there is much more flexibility about their timing and formats than with court cases, because the parties involved can agree these details between themselves, or with the help of a neutral mediator.

There are other reasons why mediation may suit those involved. Going to court almost always involves one side winning and the other losing. This “zero-sum” approach means at least one side is always dissatisfied with the outcome and the court must use its authority to impose its will on both parties and ensure compliance.

Mediation is different: a mediator cannot impose any solution; they can only help facilitate an agreement. They do this by exploring options openly and encouraging the parties to focus on future relations, and not argue about who was right or wrong or ascribe blame for past actions.

Shared resolutions also help make for sustainable outcomes, since both parties have committed to them. Because mediation involves fewer people than a full-blown hearing, costs can also be kept down – and most mediations don’t require lawyers either. In some circumstances, legal aid may be available. And Scottish Mediation is also offering some coronavirus-related services either for free or for a restricted fee.

The positive outcomes which mediation can achieve have led authorities to seek to make it more complementary to court work. Civil court rules now require presiding sheriffs and judges to enquire at an early stage if the parties have tried mediating first, and if not, referrals to it are encouraged and may be incentivised through awards of expenses. 

Ventures like the Edinburgh Mediation Project and the Strathclyde University mediation clinic are geared up to accept more referrals because of the crisis but haven’t seen as many as they might have expected – partly because some courts aren’t progressing cases even to the point of making referrals to a mediator. Yet this step could be taken entirely electronically and at distance, so not exacerbating any infection risk and helping to prevent the backlog from building up.

The 2014 digital justice strategy committed the Scottish Government to develop online mediation and arbitration options, but this has happened only partially and recently in response to the lockdown. More access would be particularly valuable to those based in remote locations, who might struggle to access mediation in person, even with physical distancing observed.

The covid-19 crisis has forced many industries to re-consider how they work in very practical terms: our courts system should be no exception. More widespread use of mediation would not only benefit the people involved; it could also provide a positive lockdown legacy. After all, mediation can offer people an alternative to court proceedings - which are adversarial and very formal - and can help resolve disputes by achieving mutual benefits.

All cases are unique and the choice of how they proceed should of course remain with the people involved. But both options – court proceedings and mediation – must be available and accessible to all to ensure proper access to justice in 21st century Scotland.

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