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SUPPORTING COURT USERS:
The In-Court Advice and Mediation Projects in Edinburgh Sheriff Court

RESEARCH PHASE 2

CHAPTER TWO THE RESEARCH

This chapter summarises the aims and findings of Phase 1 research and examines the background factors which preceded Phase 2 research. It then goes on to outline the objectives of Phase 2 research and to review the types and sources of data collected in Phase 2. It touches on some of the problems faced during Phase 2, particularly as they relate to comparability of data over the two phases of the research and between agencies.

2.1 Phase 1 Research

Aims

2.1.1 Prior to becoming fully operational in Edinburgh Sheriff Court, Scottish Courts Administration was instrumental in commissioning independent research to evaluate the In-court Advice Project. While the main objective of the In-court Advice Project was to provide advice and information to court users, a second objective turned on its innovative and experimental features. A publicly funded in-court legal advice service is one of a number of possible models by which publicly funded legal advice may be provided. Until its establishment in April 1997 in Edinburgh Sheriff Court, however, it was an untested model of legal advice provision in Scotland. By piloting a new model of service delivery and provision, an opportunity was presented for evaluating the capacity of a new model to deliver publicly funded legal services more equitably and rationally amongst those who need them. It also provided the opportunity to assess the need for an advice service located in the sheriff court and to examine the capacity of that service to provide advice and support to those in need.

2.1.2 The Legal Studies Research Branch of the Scottish Office, on behalf of Scottish Courts Administration, commissioned Elaine Samuel of the University of Edinburgh to undertake research to evaluate the In-court Advice Project over the first nine months of its operation (April to December 1997) in Edinburgh Sheriff Court. Discussions were held between the In-court Adviser and the commissioned researcher during the first weeks in which the In-court Advice Project became fully operational as to the needs of the research and the information likely to be required. Records kept by the In-court Advice Project were modified in order to provide this information.

2.1.3 The study, henceforth referred to as Phase 1 research, was undertaken to assess the demand and need for the In-court Advice Project's services, to evaluate the Project for its capacity to deliver advice and support to unassisted litigants and to explore its impact on clients, the court, court practitioners and the civil justice system. Phase 1 research documented major changes in the volume of business conducted over this early implementation phase, how that business was conducted and the procedural stages at which business was conducted. It also undertook a survey of all clients who had sought advice from the Project and it made contact with all advice agencies to which clients had been referred.

Findings

2.1.4 Research findings testified to the success of the In-Court Advice Project in achieving many of the client-related and court-related objectives which the Project had been designed to meet. The findings of Phase 1 research were reported in Supporting Court Users (Samuel, 1999) 14. and may be briefly summarised as follows:

• There was a large demand for the services of the In-court Advice Project, with the number of clients increasing dramatically over the first nine months of the Project.
• The Project was able to cope with demand by devising methods that encouraged clients to seek advice outwith court time.
• Clients provided the Project with a powerful endorsement, particularly for the court related support and assistance which they had received.
• Just under 80% of clients faced legally represented opponents.
• The Project promoted justice and efficiency in the Sheriff Court.
• The close working relationship that had developed between the Sheriff Clerk's Office and the In-court Advice Project was crucial for the success of the Project.
• The Project filled a gap in the civil justice system by offering services which few other agencies were providing.
• The Project contributed to the civil justice system by forging links between agencies and by promoting a sense of justice and inclusion through its support of court users.

2.2 Background to Phase 2 Research

Issues emerging from Phase 1 research

2.2.1 A number of issues arose from Phase 1 research, and these were partly responsible for the commissioning of Phase 2 research.

• Phase 1 research findings raised questions as to the future shape of the Project. Given its rapid business growth over the first nine months, it was particularly important to ascertain whether business had stabilised and whether the composition of that business was subject to change. In brief, information was needed to monitor the In-court Advice Project at a more mature phase of its operation.
• Some questions could not be asked during Phase 1 of the research because respondents had insufficient opportunity to work with or experience the work of the In-court Advice Project in its first nine months. As the In-court Advice Project worked its way into the fabric of the Edinburgh civil justice system, therefore, questions pertaining to the impact of the Project on those working in the Sheriff Court needed to be raised again.
• Phase 1 research was also responsible for raising additional questions. These could not be answered by the systems which had been set up to gather the information in the early phase of the Project. Thus, for example, there was concern that In-court Advice Project clients were not taking up referrals to other agencies on the advice of the In-court Adviser.

Changes to the In-court Advice Project: The Mediation Project

2.2.2 The report of the evaluation of the Edinburgh Mediation Project, established in 1995, was published in 1998 (Cameron and Loughran, 1998). 82% of the 23 mediation hearings conducted by the Edinburgh Mediation Project were successful in achieving an out of court settlement. Despite its apparent success, however, the research found that take-up of mediation services was slow. Service take-up was significantly speeded up once the In-court Advice Project came into operation in Edinburgh Sheriff Court.

2.2.3 These findings were partly responsible for establishing formal links between the two projects in 1998. Referrals from the In-court Advice Project to the Mediation Project were monitored in Phase 1 of the research. Once the Mediation Project was jointly funded and formally associated with the In-court Advice Project, however, closer examination of the operation of the Mediation Project, the effectiveness of its links with the In-court Advice Project, and its impact on the court and court users was required.

The wider context

2.2.4 Several other background developments influenced the second phase of the research. Publicly funded legal services were investigated in order to find new ways of distributing resources more equitably and rationally amongst those who need them. Some of the options proposed were disseminated for consultation in the Scottish Office Home Department's Access to Justice-Beyond the Year 2000: A Consultation Paper on Civil Legal Aid.15 Hence, the In-court Advice Project in Edinburgh Sheriff Court was operating against a background of renewed efforts to maintain and increase access to justice while simultaneously achieving value from the legal aid fund.

2.2.5 In 1998, a consultation paper was issued by Scottish Courts Administration on behalf of the Lord Advocate to seek views on proposals to vary jurisdiction limits in the Sheriff Court. 16 The Consultation Paper presented several options for small claims and summary cause procedure, ranging from moderate to profound increases in the jurisdiction limits of small claims and summary cause procedure. Hence, were new jurisdiction limits to come into operation, they would be likely to have a moderate to profound impact on the number of litigants who might need to access the Sheriff Court without legal aid and without representation.

2.3 Phase 2 research: Scope and Aims

2.3.1 Phase 2 of the research was undertaken between September 1999 and March 2000 to monitor the operation of the In-court Advice Project since its establishment in Edinburgh Sheriff Court and to provide information on the newly linked Mediation Project.

2.3.2 Phase 2 research was more limited in scope than Phase 1. It focused on the volume of business, type of business and type of client dealt with by the In-court Advice and Mediations Projects, as well as the role which both Projects played in the sheriff court.

2.3.3 Its main objectives were:

• To collect information on the In-court Advice Project relating to business conducted between 1 December 1998 and 31 August 1999 (three quarters of the way through its second year until midway through its third year )
• To compare these findings with Phase 1 findings (relating to the Project's first nine months in Edinburgh Sheriff Court)
• To monitor the operation of the Mediation Project in relation to the In-court Advice Project
• To assess the role played by both Projects in the context of wider civil justice resources and systems operating in Edinburgh.

2.3.4 Unlike Phase 1, Phase 2 research did not undertake major surveys of Project clients since their views were unlikely to have changed in the short time since Phase 1 research was conducted. Some Mediation Project clients were interviewed, however, mainly because the Mediation Project was a new component of the research. Even here, however, the main objective of Phase 2 research was to monitor Mediation Project business and its relationship to the In-court Advice Project, rather than to undertake a more comprehensive evaluation of the Mediation Project for the services it provided.

2.4 Phase 2 research: Data

In-court advice project client records

2.4.1 One of the main objectives of Phase 2 research was to collect and analyse data on the operation of the In-court Advice Project over its life so far. The main source of information about the In-court Advice Project, its clients, type and volume of its business and the services it provided were provided by client records. These were completed by the In-court Adviser every time a client consulted with her, whether in person, by letter or over the telephone.

2.4.2 Client records were initially designed by Citizens Advice Scotland to conform to client records held by Citizens Advice Bureaux in Scotland and to be used by Edinburgh Central CAB as managers of the Project. There were additional information requirements, however, and a balance had to be struck between the needs of the research and the resources available to the In-court Adviser. From its earliest days, the In-court Advice Project aimed to achieve a high volume of clients passing through it and many clients were expected to require short consultations. This meant that the collection of detailed and complex information would not only be time-consuming and detract from the In-court Adviser's main task, but it might also be inappropriate. Additional information was sought from the In-court Advice Project by the researcher and this was agreed in consultation with her in the first weeks following the introduction of the Project in Edinburgh Sheriff Court. This additional information was routinely collected by the In-court Adviser from May 1997 onwards, and it was entered into a database administered by Edinburgh Central CAB.

2.4.3 Client records were used to monitor the business of the In-court Advice Project in Phase 1 and 2, and to compare the Project at the earliest stage in its development with the more mature stage covered by Phase 2. In Phases 1 and 2 of the research, information was gathered from the In-court Advice Project client records to provide information on the following:

• name of client;
• date of consultation;
• initial or return case visit;
• type of consultation (in person, telephone, letter);
• timing of consultation (outwith or during court session);
• number of consultations per case;
• source of referral to the In-court Adviser;
• previous advice;
• procedural stage of consultation;
• if other party advised;
• housing status of client;
• type of procedure;
• if outwith remit-type of case;
• status of client (pursuer, defender);
• type of client (e.g. individual, business);
• type of opponent (e.g. individual, public body, private business);
• gender;
• relationship of litigants (e.g. business v consumer, consumer v business);
• type of claim (e.g. housing arrears, other monetary claim, damages);
• agencies to which clients referred by the In-court Adviser for advice
• agencies to which clients referred by the In-court Adviser for negotiation

2.4.4 During Phase 1 of the research, information was collected from the records of 893 consultations conducted with 674 clients between 7 April and 31 December 1997 in relation to 683 different cases. Because monthly consultations were known to have doubled since then, it was not possible to collect information on all consultations conducted after 31 December 1997. Rather than monitor consultations over the whole life of the project, it was decided to make a comparison between the first nine months of the Project and the nine months between 1 December 1998 to 31 August 1999.

2.4.5 Because data entered into the In-court Advice Project database were not transferable, information from the records of 674 clients had to be collected manually by the researcher during Phase 1 of the research in order to enter them into an EXCEL database and thereafter transport them into SPSS (Statistical Package for the Social Sciences) for analysis. During Phase 2 of the research, information was collected manually from the records of 1648 consultations conducted with the In-court Adviser between 1 December 1998 and 31 August 1999. This represented a considerable replication of work, with implications for the accuracy of the data, the quality of the research and the time in which the research was completed. Should monitoring be conducted by external agencies, there is a need to make database systems accessible to agencies outwith CAS/CABx. 17

2.4.6 Because comparisons were to be made with Phase 1 findings, client records were checked for consistency over the period covered by the two phases of the research. Conceptual difficulties emerged primarily because data entry in the period covered by Phase 1 of the research was devised in consultation with the researcher while data entry in the period covered by Phase 2 of the research was not. Thus, for example, the second In-court Adviser treated all consultations connected with particular clients as discrete and separate consultations, while the first In-court Adviser treated only consultations with actual clients as consultations. All client consultation records had to be re-examined so that only consultations with clients were recorded as 'client consultations' for the purposes of Phase 2 research.

2.4.7 The second In-court Adviser was also found to be treating consultations with clients who returned on the same day, (for example, before court and after court) as discrete and separate consultations - which the first In-court Adviser had not. In this instance, a decision was made to retain her change of recording practice since it more accurately reflected the intensity of daily business conducted by the In-court Advice Project. However, the research noted the frequency of return consultations made on the same day as previous consultations so that this changed recording practice could be taken into account to explain increases in the volume of business between Phase 1 and 2 research. This had implications for the complexity of the quantitative analyses that were conducted (see Chapter 3).

Mediation Project Client Records

2.4.8 In Phase 2, data were collected from both the clients' records of the Mediation Project and the In-court Advice Project to monitor the sources and type of business conducted by the Mediation Project. Information was collected from In-court Advice Project records on all referrals made by the In-court Advice Project to the Mediation Project between 1 December 1998 and 31 August 1999, and from Mediation Project records on all referrals made directly to the Mediation Project, either by sheriffs, by the Mediation Co-ordinator or by CABx.

2.4.9 Information on the progress of referrals and cases through the Mediation Project was collected from the Mediation Project's client records database. In total, information was collected on 151 referrals to the Mediation Project between 1 December 1998 and 31 August 1999. The following information was collected:

• source of referral (e.g. CAB, In-court Adviser, Sheriff)
• 'first' party response (e.g. no response, yes, try negotiation first) status (e.g. individual, small business) representation
• 'second' party response (e.g. no response, agreement, try negotiation first) status (e.g. individual, small business) representation
• mediation type (arms-length or hearing), date, length, outcome, agreement honoured

2.4.10 Synchronisation of data collected from the case records of In-court Advice and Mediation Projects was difficult. While the Mediation Project and the In-court Advice Project had a close relationship, both projects were administered independently, and client records were kept both by the Mediation Project and the In-court Advice Project. Different categories of data were collected by the two projects and entered in different formats. Where similar categories of data were collected, the criteria by which data were categorised were often found to be different. Moreover, the system by which information was categorised in the Mediation Project appeared to have evolved over time so that internal consistency was sometimes lacking. It was possible to construct consistency across the data in those cases where clients had been referred from the In-court Advice Project to the Mediation Project since two sets of records were available for the same client. This was not possible, however, where clients were referred to the Mediation Project either by Edinburgh Central CAB or by the Mediation Co-ordinator working in the Sheriff Court. Hence, where data were incomplete, monitoring and analysis remained partial.

Interviews

2.4.11 In Phase 2 research, 23 interviews were conducted with 22 persons between November 1999 and March 2000. Ten of these interviews were conducted in relation to the Mediation Project. Face-to-face interviews were conducted with four key players in the Mediation Project: namely, the Mediation Co-ordinator, the In-court Adviser and two mediators. Telephone interviews were conducted with six persons referred to the Mediation Project. They were selected towards the end of the research period on the basis of their potential to exemplify or further explore some aspect of the analysis.

2.4.12 To assess the operation of the In-court Advice Project in its 'mature' phase, three interviews were conducted with the In-court Adviser and the Deputy Manager of Edinburgh Central Citizens Advice Bureau who assisted the In-court Adviser one day a week in the court. To examine the impact of the In-court Advice Project on the sheriff court and those who work in it, three face to face interviews were conducted with two sheriffs and the Sheriff Clerk Depute (small claims and summary cause section). Three interviews were also conducted with parties and legal representatives of parties opposed in court by clients of the In-court Advice Project. These included a representative of the City of Edinburgh Housing Department and two solicitors.

2.4.13 To assess the structural role of the In-court Advice Project in relation to wider civil justice resources and systems operating in Edinburgh, four interviews were conducted with representatives of three other advice agencies (two voluntary and one local authority) located in the area served by Edinburgh Sheriff Court.

Altogether 23 interviews were conducted with 22 persons, as follows:

Table 2.1

Documentary evidence

2.4.14 All documentary evidence pertaining to the In-court Advice and Mediation Projects, their objectives and their implementation were collected, as well as documents pertaining to their on-going management. This included minutes of Steering Group meetings as well as periodic reports submitted to the In-court Advice Project Steering Group by the In-court Adviser and Mediation Co-ordinator. Information collected by this method assisted the research in monitoring the 'start-up' and 'bedding-down' periods of the In-court Advice Project as well as the periods both prior to and following the formal linkage of the Mediation Project to the In-court Advice Project. These documents were particularly useful for identifying the contribution of other agencies in the civil justice system to the operation of both projects. This aspect of the investigation was also assisted by attendance at all meetings held by the In-court Advice Project Steering Group.

2.5 Phase 2 Research report: Contents

2.5.1 Phase 2 of the research was undertaken between September 1999 and March 2000 and covers the operation of the In-court Advice Project over a nine month period, from December 1998 to August 1999. This report sets out the findings of Phase 2 research.

2.5.2 This chapter follows an introduction to the background to the In-court Advice and Mediation Projects. It provides a brief summary of Phase 1 research findings and an outline of Phase 2 research. The chapters which now follow document the findings of the research. The next chapter examines the business handled by the In-court Advice Project in the period covered by Phase 2 of the research, and makes comparisons with Phase 1 findings. This is followed by a chapter documenting findings related to the Mediation Project. The subsequent chapter presents interview-based evidence as to the impact of both projects on the sheriff court and those who work in it. Finally, the report presents some conclusions of the research.

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