Not so simple? Court based mediation in Scotland

Clark, Bryan (2018) Not so simple? Court based mediation in Scotland. Civil Justice Quarterly. ISSN 0261-9261 (In Press)

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Abstract

This article is concerned with the recent development of court-connected mediation in the context of ‘simple procedure’ in the Scottish sheriff courts. The article examines the policy drivers behind the recent moves to introduce mediation in Scottish civil courts and provides a detailed discussion of the rules providing for mediation in the new simple procedure in the sheriff courts. The piece then critically analyses the practical roll out of mediation in simple procedure and argues that current practice does not safeguard the crucial aspect of litigants’ informed consent to both participation in mediation and in respect of outcomes brokered within the process. The piece hence argues that a uniform, funded system of referral to mediation needs introduced across Scotland. It further suggests that in the quest for ensuring that litigants without lawyers (LiPs) are in a proportionate sense able to make informed decisions about the outcomes they sign up to mediation, lay advisers be marshalled to aid those who find themselves mediating in the shadow of the court.

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