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SUPPORTING COURT USERS:
The In-Court Advice and Mediation Projects in Edinburgh Sheriff Court
RESEARCH PHASE 2
CHAPTER ONE THE IN-COURT ADVICE PROJECT IN EDINBURGH SHERIFF COURT
1.1 the in-court advice project: Phase 2 research
1.1.1 The In-court Advice Project is the first court based advice and mediation service to be established in Scotland and is substantially broader than any court-based advice and representation duty scheme previously established in England. 5 The In-court Advice Project was introduced into Edinburgh Sheriff Court in April 1997, when it first began to offer its services from a room adjacent to Court 14, where hearings on small claims and summary cause actions are held. The Project was initially funded by the European Commission for a period of one year, and research was conducted to monitor the Project over the first nine months of its operation. The findings of this initial research phase were reported in Supporting Court Users: The In-Court Advice Project in Edinburgh Sheriff Court. and is henceforth referred to as Phase 1 research. 6
1.1.2 Significant changes to the In-court Advice Project followed. A mediation service was formally linked to the In-court Advice Project in 1998, the Scottish Executive Justice Department took over its funding in 1999 and the number of clients using In-court Advice Project services increased substantially over the period. The expansion of the Project, both in the volume of business and its scope, warranted a second phase to the research. The research now being reported here took up exactly one year from where Phase 1 research left off and monitored the Project for a period of nine months - from three quarters of the way through its second year to midway through its third year. This second phase of the research was conducted to inspect the new mediation component of the Project, to examine the Project's continued impact on court users, the sheriff court and the civil justice system, and to assess the Project for its achievements over its first three years.
1.1.3 The rest of this chapter documents the origins of the In-court Advice Project, describes the setting up and management the In-court Advice and Mediation Projects, charts the emerging links between both projects and concludes by examining their respective remits.
1.2 the In-court Advice Project: charting its origins
Small claims procedure and the identification of need
1.2.1 The need for a court-based advice service was identified at an early stage in the implementation of small claims procedure. This was introduced into the Scottish civil justice system in November 1988. Though small claims procedure was designed to give special support to unrepresented or 'party' litigants, research conducted to monitor its implementation showed that only a small proportion (less than 10%) of those raising actions under the procedure were small business or non-corporate litigants. Indeed, the majority of litigants were found to be represented by solicitors at all stages of their small claims actions (Jones et al, 1991). The research found problems encountered by party litigants relating to, amongst other things, raising actions, 'contested' preliminary hearings and full hearings. Though sheriff clerks were found to play a supportive role, this was restricted by their remit to provide advice on procedural matters alone. Lay and legal advisers identified the need for "either a rota of advisers at the court or an in-court adviser to assist unrepresented litigants at preliminary hearings, and possibly even full hearings" (ibid.: 66). In reporting its findings on the implementation of small claims procedure, the research team proposed the introduction of an in-court adviser in one of the larger urban courts on an experimental basis.
1.2.2 Glasgow Sheriff Court was first identified as the location for a pilot in-court advice service. By December 1992, the Scottish Consumer Council and Citizens Advice Scotland, together with representatives of advice agencies serving Glasgow Sheriff Court, had agreed a basic format for an in-court advice project. 7 It would provide emergency 'first aid' advice to court users attending the small claims and heritage courts in Glasgow Sheriff Court, and would be available to both pursuers and defenders on the five half days during which these courts were normally in session. The project would be serviced by two persons at each session, a "reasonably trained advice giver"(ibid.) provided by advice agencies in the Glasgow area, as well as a receptionist. The proposal for the pilot project was to be prepared by the legal advisory officer of the Scottish Consumer Council and the legal services adviser of Citizens Advice Scotland. Furthermore, all advice agencies in the Glasgow area were to be approached for their commitment to the project. The project would be operated by participating advice agencies on a rota basis and arranged around their preferences for serving the heritage or small claims courts. At the same time, each advice agency would be responsible for ensuring that the slot allocated to them was filled, and for making their own arrangements for insurance. It was agreed that the pilot would run over a period of four months, with a projected start date of April 1993. 8 The proposal was subsequently rejected by the Lord Advocate and the project was not established in Glasgow Sheriff Court. When it was eventually piloted in Edinburgh Sheriff Court, it was to take on a quite different form.
Access to litigation and legal representation
1.2.3 The need for an in-court advice service did not abate in the decade that followed. Access to legal representation appeared to have become increasingly difficult for all but corporate litigants in the 1990s. Unassisted litigants were reported to be appearing with increasing frequency in the sheriff court in summary and ordinary cause cases, and this was thought to have been responsible for reducing access to justice as well as reducing efficiency in the sheriff court.
1.2.4 These trends were documented by official statistics and socio-legal research in the civil justice system as follows:
- The number of ordinary cause actions raised in the sheriff court decreased substantially between 1992 and 1994, while the number of summary cause actions showed a continuous decline since 1991. 9 Applications for civil legal aid decreased and this concurrent decline in the number of actions and civil legal aid applications was partly, though not exclusively, due to new financial eligibility criteria for civil legal aid which were introduced in April 1993. 10 As a result, the number of non-corporate litigants raising actions under ordinary and summary cause procedure decreased.
- Other explanations for the decreasing number of non-corporate litigants and the increasing number of party litigants were given. The rising cost of legal advice, representation, and sheriff court dues could have made litigation a risk not worth taking, especially for claims under summary cause procedure and the lower end of ordinary cause jurisdiction. Thus, for example, the number of ordinary cause actions raised in the sheriff court fell by 11143, or 20%, between 1993 and 1994. 11 The actual number of debt actions initiated fell by over 6000, accounting for over half of the total fall. The rising cost of pursuing a claim was held responsible by some for the falling number of debt actions (Samuel and Bell, 1997).
- Though the number of applicants for civil legal aid decreased, expenditure on publicly funded legal services increased. The increase in public expenditure was divided up amongst a decreasing number of publicly funded litigants. Spreading the publicly funded provision of legal services more equitably and rationally amongst those who needed them found its way up the policy agenda.
- Research commissioned by the Central Research Unit of the Scottish Office (LSRB) suggested that problems faced by small claims litigants arise at all stages in case trajectories, particularly in cases which are not straightforward payment claims (Samuel, 1998). Access to legal advice was restricted, lay advisers did not feel competent to give it, and claimants lacked negotiating power and skills in relation to those against whom their claim was made. Those who went on to litigate under small claims procedure knew little of what was required of them, whether they had a legal basis on which to proceed and, if so, what it was necessary for them to demonstrate in order to achieve success.
- Problems faced by party litigants are also wasteful of court resources and witnesses' time. The appearance of unassisted litigants in the sheriff court has implications for the administrative efficiency of sheriff courts as well as access to justice.
- Apposite research findings on the experience of unassisted litigants in housing-related cases also emerged. Research conducted by the National Consumer Council in England suggested that representation, even in the form of last-minute intervention, could make a significant impact on the judicial process in housing repossession cases: by providing judges with the information they need to make appropriate orders; by identifying a defence; by assisting defendants in making a more realistic offer to pay; and by ensuring that they are receiving the benefits to which they are entitled. Indeed, the existence of court-based schemes may encourage the attendance of more defendants in court, which was also found to have implications for the outcome of housing repossession cases. 12
- In response to the identification of needs and to the success of court-based advice services in meeting them, more and more 'duty schemes' and other court-based advice services were set up in England and Wales in the 1990s. 13 This led to proposals in 1997 to draw up a 'good practice guide' for advice schemes situated in courts in England and Wales.
1.3 The In-court Advice Project in Edinburgh Sheriff Court
Setting up and funding
1.3.1 The establishment of a pilot project in Scotland was triggered in 1995, when Sheriff Principal Gordon Nicholson gave intimation of his willingness to introduce a court-based advice service into Edinburgh Sheriff Court, should funding be found. Principled support for the pilot project was later confirmed by the Scottish Office and Scottish Courts Administration. Citizens Advice Scotland (CAS) and the Scottish Consumer Council (SCC) were left to take the proposal forward, and they were subsequently successful in securing funding from the Directorate-General XXlV of the European Commission for a 15 month pilot project, commencing in January 1997 and becoming fully operational in April 1997.
1.3.2 The grant from the European Commission was equivalent to 34,632 and represented just over 75% of the Project's total budget. There were contributions in-kind of 8250 from Citizens Advice Scotland and the Scottish Consumer Council, and of 2500 from Edinburgh Sheriff Court. Funding was secured from the European Commission for a further year, from April 1998 to March 1999, when the Project also entered into a partnership with the Irish Department of Consumer Affairs, which ran a similar service for the Dublin courts in that year. The European Commission's funding of the In-court Advice Project in this second year included the Mediation Project which was then formally incorporated into the In-court Advice Project. Funding was reduced to 50% of the first year budget and the shortfall was made good by the Scottish Consumer Council, Citizens Advice Scotland and Edinburgh Sheriff Court. European Commission funding was not forthcoming for a third year and it was taken over by Scottish Courts Administration (latterly part of the Scottish Executive Justice Department).
Scope of the In-court Advice Project: Initial stage
1.3.3 The pilot In-court Advice Project was set up in Edinburgh Sheriff Court to provide advice and information to those raising or defending small claims and summary cause (including heritage) actions, as well as unassisted litigants involved in ordinary cause actions where The Debtors (Scotland) Act 1987 may be applied. Its aims were to provide clients with the necessary tools to construct a defence or argument in pursuing or defending a claim, as well as to direct them to agencies which might be able to provide them with further assistance on matters such as debt, which might have brought them to court in the first place. All unassisted litigants with cases within the remit of the Project were eligible for advice, though they were not to become the In-court Adviser's clients beyond the stage of initial advice. Clients requiring further assistance were to be referred by the In-court Adviser to advice agencies and solicitors, as appropriate. This included referral to mediation services where clients expressed a preference for alternative or complementary methods of dispute resolution.
Scope: Incorporating the Mediation Project
1.3.4 In-court Advice Project clients seeking alternative methods of dispute resolution were referred to the Mediation Project, which had been established in Edinburgh in January 1995. The Mediation Project was operating out of Edinburgh Central Citizens Advice Bureau and was being funded by the Development Fund of Citizens Advice Scotland. Close links were established between the Mediation Project and In-court Advice Project almost as soon as the latter was introduced into Edinburgh Sheriff Court in 1997. In April 1998, the Mediation Project was formally linked to the In-court Advice Project when joint funding was provided by Directorate-General XXlV of the European Commission. Since April 1999, both projects have continued to be linked by joint funding from the Scottish Executive Justice Department.
1.3.5 An evaluation of the Mediation Project conducted soon after the introduction of the In-court Advice Project into Edinburgh Sheriff Court identified important consequences for the Mediation Project (Cameron and Loughran, 1998). While referrals to the Mediation Project were sporadic prior to the establishment of the In-court Advice Project, the Mediation Project benefited from an increased flow of appropriate referrals following the introduction of the In-court Advice Project into Edinburgh Sheriff Court. Indeed, though the In-court Advice Project was not specifically designed to do so, it was found to have provided the Mediation Project with almost its entire client base soon after its introduction. This was subsequently responsible for drawing the Mediation Project more closely into the organisational framework and operation of In-court Advice Project, from Spring 1998 onwards.
Management and structure
1.3.6 The In-court Advice Project is managed by Citizens Advice Scotland and the Scottish Consumer Council and is independent of Edinburgh Sheriff Court. At the same time, Edinburgh Sheriff Court and Scottish Court Service support the Project by making available to it the facilities of the sheriff court. The In-court Advice Project has been under the guidance of a steering group which is chaired by the Sheriff Principal of Lothian and Borders, Sheriff Principal Gordon Nicholson QC, and which includes representatives of sheriffs and sheriff clerks in Edinburgh Sheriff Court, Scottish Executive Justice Department, Citizens Advice Scotland, the Scottish Consumer Council, Edinburgh Central Citizens Advice Bureau, Community Help and Advice Initiative, Wester Hailes (CHAI), Edinburgh Bar Association, Scottish Legal Aid Board and the Central Research Unit of the Scottish Executive. This steering group met on a bi-monthly basis since the In-court Advice Project was first introduced into Edinburgh Sheriff Court until September 1999. It then began meeting on a half-yearly basis, though a management sub-group of the steering group continued to meet more frequently. Prior to its incorporation within the In-court Advice Project, the Mediation Project operated under the guidance of its own steering group. It is now under the guidance of the In-court Advice Project's steering group.
1.3.7 The structure of the In-court Advice Project is quite different from that originally proposed for Glasgow Sheriff Court. The Project was initially staffed by one full time in-court adviser employed by the Project, working from an office in Edinburgh Sheriff Court. In the first year, responsibility for the management, performance and future development of the Project was shared by Susan McPhee (on behalf of Citizens Advice Scotland) and Lynne MacMillan (on behalf of the Scottish Consumer Council). Susan McPhee and Sarah O'Neill (on behalf of Scottish Consumer Council) assumed responsibility from the second year onwards. The day-to-day management of the project worker was sub-contracted to Edinburgh Central Citizens Advice Bureau, which was also responsible for setting up and handling all office and payroll requirements.
1.3.8 From April 1998, when the Mediation Project was formally incorporated into the In-court Advice Project, Liz Cameron became one of the In-court Advice Project's paid employees as co-ordinator of the Mediation Project. She had co-ordinated the Mediation Project operating out of Edinburgh Central Citizens Advice Bureau since a few months after it was originally established in 1995. As Deputy Manager of Edinburgh Central Citizens Advice Bureau, she had also been responsible for the day-to-day management of the In-court Adviser ever since the establishment of the In-court Advice Project in Edinburgh Sheriff Court. Though no longer Deputy Manager of Edinburgh Central Citizens Advice Bureau, she continued to be responsible for the day to day management of the In-court Adviser.
1.3.9 Links between the two projects were facilitated by virtue of the Mediation Co-ordinator's role in Edinburgh Central CAB's line management of the In-court Adviser. Weekly meetings between the In-court Adviser and her line manager have been held ever since the In-court Advice Project was first introduced into Edinburgh Sheriff Court in April 1997. The Mediation Co-ordinator took the place of the In-court Adviser in her absence since the In-court Adviser had worked at Edinburgh Central CAB prior to taking up her post. Both the Mediation Co-ordinator and the In-court Adviser, therefore, were well acquainted with the operation of the each other's project and the constraints under which they were both working.
The In-court Adviser: Remit and recruitment
1.3.10 The main task of the In-court Adviser is to offer advice to unassisted litigants attending Edinburgh Sheriff Court and to refer them on to appropriate agencies for further advice, should this be necessary. Court representation was to be offered only in an emergency, though the matter was to be kept under review. The In-court Adviser was also to liaise closely with the Sheriff Clerk's Office and other agencies, such as local authority housing departments and other advice agencies, to set up mechanisms of referral to and from the Project. In addition, the In-court Adviser was to keep records of services provided and referrals made, and to provide the Steering Group with monthly reports on the Project.
1.3.11 The In-court Advice Project has employed a full time worker in Edinburgh Sheriff Court since 1997 and offers its services there throughout the week from a room adjacent to Court 14, where hearings on small claims and summary cause actions are held. Recruitment to the post began in January 1997 and the successful applicant was in position on 7 April 1997. Because the In-court Advice Project was not to operate as a legal practice, nor the In-court Adviser as a solicitor, criteria for selection did not include legal qualifications. Expertise with regard to court-related matters was required, however, and this was likely to be beyond the level of expertise of many advice agency workers. In the event, a qualified solicitor with experience both in private practice and in the lay advice sector was selected. The first In-court Adviser, Sarah O'Neill, was given a 12 month contract of employment and remained in post until the expiration of the European Commission's first 12 month period of funding. She was the In-court Adviser throughout the period covered by Phase 1 of the research on the In-court Advice Project. The second In-court Adviser, Beverley Klein, came to the post in April 1998 with a law degree and Diploma in Legal Practice as well as many years' experience of legal and other advice work in the voluntary sector. She remained in post for two years and was the In-court Adviser throughout Phase 2 of the research described in this paper. From June 1999, because of pressure of work on the In-court Adviser in heritage cases, the In-court Adviser was joined each Friday by the Deputy Manager of Edinburgh Central CAB, Karen Sutherland, to give advice and assistance to party litigants attending the heritage court. As the service grew, it also employed other part-time and voluntary staff.
The Mediation Project: Remit
1.3.12 From April 1998, the In-court Advice Project was joined by the co-ordinator of the Mediation Project, who was concurrently the Deputy Manager of Edinburgh Central CAB over most of this period. Though formally incorporated into the In-court Advice Project, the Mediation Project continued to operate out of Edinburgh Central CAB.
1.3.13 The Mediation Project dealt with referrals from other advice agencies, as well as the In-court Advice Project. The Mediation Co-ordinator was also responsible for referring cases to mediation, both from the court and from Edinburgh Central CAB. All clients referred to mediation by the In-court Adviser or Mediation Co-ordinator were given or sent a leaflet explaining the service that was being offered, and these clients were referred to as 'first' parties. If 'first' parties agreed, then the Mediation Co-ordinator usually wrote to the other party to the dispute, commonly referred to as the 'second' party. In every case where both parties agreed to some form of assistance, the Mediation Co-ordinator conducted an investigation into the background of the dispute by speaking to both parties. Views as to what form of mediation or negotiation would best suit both parties emerged from these discussions. This involved taking into account the complexity of the dispute and how much time parties wished to invest in its resolution.
1.3.14 In many cases, both parties agreed to the Mediation Co-ordinator's assistance in negotiating a settlement on their behalf, often 'at a distance' or 'arm's length'. Mediation hearings were usually preceded by attempts to negotiate a settlement in this way. They were conducted by the Mediation Co-ordinator on behalf of clients who had been referred to the Mediation Project. Most mediation hearings were conducted by mediators trained by the Centre for Dispute Resolution (CEDR) or the Law Society of Scotland, and all volunteered for the task on a pro bono basis. Most mediation hearings took place at Edinburgh Central CAB though Edinburgh based mediators sometimes used their own offices. Mediation hearings were offered free to both 'first' and 'second' parties. The Mediation Co-ordinator was responsible for providing an after-care service to all those involved in the mediation process.
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