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No so simple? Court referred mediation in Scotland

Lookup NU author(s): Professor Bryan Clark



This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License (CC BY-NC 4.0).


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 advisors be marshalled to aid those who find themselves mediating in the shadow of the court.

Publication metadata

Author(s): Clark B

Publication type: Article

Publication status: Published

Journal: Civil Justice Quarterly

Year: 2020

Volume: 39

Issue: 1

Pages: 23-46

Online publication date: 20/12/2019

Acceptance date: 29/11/2018

Date deposited: 24/10/2020

ISSN (print): 0261-9261

Publisher: Sweet and Maxwell