Give alternatives to court a higher profile, MSPs say in report

Increased use should be made of alternative dispute resolution (ADR) methods such as mediation and arbitration as an alternative to civil courts, according to Holyrood’s Justice Committee in a report published today.

Titled I Won't See You in Court, the report also calls for better and more consistent information about ADR to be given to solicitors’ clients, and the public more widely, before they enter into legal disputes. Barriers to further use of ADR, the MSPs believe, include lack of information on its availability and benefits; inconsistency in the provision and funding of ADR; and inconsistency in referrals to ADR from the courts.

Although the report recognises that ADR may not be appropriate in all cases, particularly in domestic abuse situations, it suggests that in other circumstances, mandatory ADR information meetings should be piloted.

The MSPs also suggest that consideration should be given to extending legal aid to cover methods of ADR other than only mediation as at present. Similarly, ADR must be accessible, and not limited by a lack of services in certain areas, and consideration should be given to how more consistent services can be provided and funded throughout Scotland.

Further, the Law Society of Scotland should review the content of the route to qualification as a solicitor in Scotland to ensure that sufficient focus is given to ADR during legal education and training; and should consider whether it can put in place more robust requirements on solicitors to advise their clients on the range of dispute resolution methods available to them, such as requiring them to keep records of when they have provided advice on ADR which could then be audited.

On balance, however, people "should not be compelled" to participate in ADR.

Committee convener Margaret Mitchell MSP commented:

"The Scottish civil justice system could undergo a step change if we increase the use of less confrontational methods of resolving disputes.

"The committee heard compelling evidence about the benefits of alternative dispute resolution methods that already exist. However, barriers of knowledge, provision and funding can all too often prevent them from being realised. The ideas set out in this report could provide a road map for the Scottish Government and legal sector to transform the delivery of civil justice in Scotland.

"While there will always be a place for formal court proceedings, there needs to be greater awareness that quicker, more cost effective and less traumatic alternatives are often available. The committee considers that there is a pressing need for further system-wide training and awareness raising for the judiciary and legal profession."

Click here to view the committee’s report.