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| The use of mediation in neighbour disputes has developed later in Scotland than in England. This study describes the extent to which mediation was available in Scotland in Spring 1998 and, using the results of a major English study, describes the strengths and weaknesses of mediation and examines its cost-effectiveness compared to other measures used to resolve neighbour disputes. |
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| Main Findings |
- The authors concluded that the neighbour dispute problem is broadly similar (in terms of incidence and character) in Scotland and England; disputes over shared access areas in tenement properties are, however, distinctly Scottish.
- Legal responses available in the two jurisdictions are similar.
- The use of mediation to try to resolve neighbour disputes is increasing in Scotland; recent growth has been mainly in in-house mediation services, usually operated by the housing landlord, rather than independent services.
- Funding of independent community mediation services in Scotland has relied heavily on central government. In England, where this type of service is more common, local authorities have been the main source of funding
- Although there is little empirical evidence on whether mediation is more effective than alternatives in terms of resolving conflicts, mediation is a valuable addition to the range of responses available.
- Mediation is often a very intensive and time consuming process and is certainly not cost-free. Nevertheless it can be cheaper than alternative measures, particularly legal remedies.
- Mediation is a more constructive way of dealing with some types of disputes than conventional measures. In many cases it will also be a more cost-effective response.
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| Introduction |
| The aims of this study were: |
| 1. to survey the extent to which mediation is being used in Scotland in cases of problems between neighbours; |
| 2. to provide guidance to housing landlords about the strengths and weaknesses of mediation and about the conditions in which it is likely to be effective; |
| 3. to give advice on the cost-effectiveness of mediation compared to other measures; in particular whether the conclusions of a major study by the authors in England would apply to Scotland also. |
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| Neighbour Disputes in Scotland and England |
| In neither Scotland nor England are there accurate statistical records for the total number or type of neighbour disputes. Limited survey evidence suggests that noise is the most common category of neighbour nuisance in both countries. |
| The study considered factors which might cause the incidence of neighbour disputes to vary: |
- population density. Disputes are more frequent in areas of high population density. Although Scotland as a whole has much lower density than England, the concentration of people in urban areas is similar.
- housing type and tenure. The prevalence of tenement properties in Scotland may lead to more disputes over shared areas such as common stairs and drying greens. Tenure differences were, however, not thought to be relevant. The authors found no research, in either Scotland or England, demonstrating a relationship between neighbour disputes and tenure.
- deprivation. Disputes are more frequent in areas of acute social and economic deprivation. Unemployment has tended to be higher in Scotland, and overcrowding is more common, but a smaller proportion of households in Scotland lack basic amenities; the impact of these differences is likely to be marginal.
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| The overall conclusion is that differences between Scotland and England are not so fundamental or pronounced as to make the problem of neighbour disputes in Scotland significantly different from that in England. |
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| Legal and Institutional Differences Between Scotland and England |
| One important difference is that, in Scot law (but not in English law) making excessive noise at an inappropriate time or in an inappropriate place may itself constitute a criminal offence. But: |
- the extent to which criminal law is used by the police as a remedy for neighbour disputes seems to be similar in the 2 jurisdictions;
- there is little difference between them in terms of the ease of obtaining an injunction/interdict or in terms of the speed of doing so;
- the structure and effect of substantive and procedural law relating to applications for possession and evictions are similar in the two jurisdictions.
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| English social landlords can use 'probationary' tenancies to make it easier for them to gain re-possession in the first 12 months of a tenancy. This is not, at present, available in Scotland. |
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| Strengths and Weaknesses of Mediation |
| Mediation is defined as "a process by which an impartial third party helps parties to a dispute to work out how to resolve their conflict". |
| In the past there has been a lack of an effective way of resolving the great majority of neighbour disputes that are not serious enough to warrant legal action or tenancy transfer. Mediation is a valuable addition to the rather limited range of conventional responses that do not depend on court action. Various types of neighbour dispute cases can be distinguished: |
| 1. inconsiderate or mildly anti-social behaviour: mediation may often be more effective than conventional responses; Edinburgh City Council routinely refers all minor neighbour nuisance cases for mediation; |
| 2. disputes involving a more serious personality or life-style clash: these are a more serious challenge for mediation, but skilled mediators can help people to learn to live with their differences; |
| 3. more serious forms of anti-social behaviour, eg harassment: even in this type of case, there is a very strong argument for seeking a less confrontational resolution first; |
| 4. disputes involving serious criminal acts or severe harassment: mediation is a non-judgemental process and therefore not appropriate in this type of case where society's disapproval needs to be registered; |
| 5. disputes where the neighbour nuisance is a by-product of some other criminal behaviour or inter-personal conflict, eg drug-dealing in a neighbouring house: once the cause of the trouble is dealt with, mediation may help to restore relations between the complainant and the neighbour. |
| As well as being suitable for some types of conflict but not others, mediation is also more likely to work where each of the parties accepts that there is a problem and is keen for it to be resolved. So the attitudes of parties is important and it helps if, at some time, they have had a harmonious relationship. Some mediation services refuse to accept referrals where there have been threats or violence or where there is an imbalance of power between the parties (eg where one party has a mental disorder). Whatever referral criteria are adopted, some flexibility should be retained. |
| The study discusses the pros and cons of 4 principal models for mediation in cases of neighbour disputes: |
| - an independent community mediation service; - an in-house mediation service usually operated by the housing landlord; - retaining existing staff as specialist mediators; - using freelance mediators. |
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| The Use of Mediation in Scotland |
| At the time of this survey there were 3 operational community mediation services in Scotland and two in-house services, though several more were being planned. By contrast there are about 100 community mediation services dealing with neighbour disputes in the whole of the UK. |
| Independent community mediation services have expanded far less in Scotland than in England. The authors attribute this to: |
- the funding environment being different in Scotland where, for example, there appears to be less access to well-endowed charitable foundations. The report makes suggestions about the funding of mediation services.
- a different political climate in Scotland where many councils prefer to be directly responsible rather than engage voluntary sector agencies to provide mediation.
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| The study report provides details (origin, funding, size, etc) about each of the existing or planned mediation services dealing with neighbour disputes that were operational or planned in Spring 1998: Edinburgh, Dundee, Fife, South Kessock, Aberdeen, Inverness, Falkirk, South Lanarkshire, Stirling, Inverclyde, and Weslo Homes. |
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| Mediation Compared to the Alternatives |
| The report discusses how mediation compares in terms of accessibility, effectiveness, fitness for purpose, fairness of the process (rather than the outcome), and the extent to which disputants can exercise control over the proceedings. |
| The comparison focuses particularly on cost effectiveness. In their detailed English report the authors had concluded that mediation is cost-effective. They re-examined this conclusion in the context of Scottish "differences" discussed above and available information about relative costs. For example the average cost per case of Scottish in-house mediation services may be inflated as a result of low caseloads and higher overheads (particularly where mediators are employees rather than volunteers). This study did not repeat the English study's examination of the time spent by in-house services on mediation as compared with other duties, so it cannot calculate an accurate average cost per case. |
| The study concludes that, in Scotland as in England, mediation is likely to be cheaper than legal remedies or a tenancy transfer. But if costs were the only consideration, the case for using mediation routinely in neighbour disputes would be rather weak. The scope for large savings through switching to mediation is likely to be limited because few disputes result in formal action, most being dealt with informally by administrative interventions. The study argues that the stronger case for mediation is that it offers a more constructive way of resolving types of disputes that are often not amenable to more conventional measures. |
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| About the Study |
| The survey of the use of mediation in Scotland was conducted in Spring 1998, using questionnaire and interview data supplemented by analysis of existing reports and evaluations where they were available. |
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| "Resolving Neighbour Disputes Through Mediation in Scotland", the research report which is summarised in this Research Findings, is available priced £4. Cheques should be made payable to The Stationery Office and addressed to: |
The Stationery Office Bookshop, 71 Lothian Road, Edinburgh EH3 9AZ
Telephone: 0131-228 4181, or Fax: 0131-622 7017 The report can also be ordered online from:www.thestationeryoffice.co.uk |
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| This Research Findings may be photocopied, or further copies may be obtained from: |
The Scottish Office Central Research Unit
2J
Victoria Quay
Edinburgh
EH6 6QQ |
| Telephone: 0131-244 7560 |