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

RESEARCH PHASE 2

CHAPTER FOUR THE MEDIATION PROJECT:

This chapter presents research findings relating to the operation and business of the Mediation Project during the period covered by Phase 2 of the research. It first examines the links between the In-court Advice and Mediation Project, particularly as they relate to referrals and the setting up of mediation services (4.1). It then documents the business of the Mediation Project by examining the sources of referrals to the Project, the kinds of cases referred and the procedural stages at which they are referred, the characteristics and responses of clients referred, and the outcome of these referrals (4.2). It then goes on to examine the role played by the Mediation Project in the context of the Sheriff Court and in relation to the In-court Advice Project, litigation, litigants and solicitors (4.3). The services offered by the In-court Advice Project are then documented and the conditions for successful 'assisted' negotiation and mediation hearings are considered from the perspective of clients and mediators (4.4). The chapter concludes with a summary of findings (4.5).

4.1 Introduction

The Mediation Project and Phase 1 research

4.1.1. Because the Mediation Project was independent of the In-court Advice Project during Phase 1 of the In-court Advice Project research, referrals to the Mediation Project were documented and treated in Phase 1 of the research in the same way as referrals to all other advice agencies (see Samuel,1999: 80-87). This chapter monitors the Mediation Project between 1 December 1998 and 31 August 1999, in Phase 2 of the research.

The process of referral

4.1.2 Referrals to the Mediation Project over the period covered by Phase 2 of the research were made by the In-court Adviser, by Central CAB, by sheriffs and by the Mediation Co-ordinator who began attending the small claims/summary cause court in April 1998, soon after the Mediation Project was formally joined to the In-court Advice Project. The Mediation Co-ordinator also evaluated the appropriateness of cases for mediation by listening to cases as they were called up. Should they be deemed appropriate for mediation, she followed one or both parties out of the court and asked if she could speak to them. The In-court Adviser usually evaluated the appropriateness of cases for mediation during consultation with her clients. Sheriffs also began to refer litigants to mediation from court during Phase 2 of the research and litigants were directed either to the In-court Adviser or the Mediation Co-ordinator by sheriffs. Some referrals were made by Edinburgh Central CAB directly to the Mediation Co-ordinator at Edinburgh Central CAB. This was possible because the Mediation Co-ordinator was also a paid employee (Deputy Manager) of Edinburgh Central CAB.

4.1.3 All clients to whom mediation was suggested were given a leaflet about mediation by the In-court Adviser or Mediation Co-ordinator. Leaflets were sent out to those with whom consultations were conducted by telephone. A standard letter was then sent out to all clients with cases for which mediation was believed appropriate, as well as to those clients to whom mediation had been suggested should other proposed options not work out to their satisfaction. Clients referred to mediation in this way were categorised as 'first' parties, simply because they were the first party to the dispute to be contacted.

4.1.4 'First' parties responded on their own initiative. Because some were invited to consider mediation should other options fail, not all 'first' parties who responded in the negative or who failed to respond may be seen as 'failed' referrals. If 'first' parties agreed to a mediation hearing or, in some cases, to some form of assisted negotiation, then the Mediation Co-ordinator usually wrote to the other party to the dispute, henceforth called the 'second' party. If the 'second' party was legally represented, however, she called the 'second' party's agent directly. In some cases, both parties agreed to the Mediation Co-ordinator helping them negotiate a settlement 'at a distance' or at 'arm's length' rather than to a mediation hearing (see 4.4.1 for further details). In every case, 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 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.

4.1.5 An integral part of the service provided by the Mediation Project, according to its Co-ordinator, was access to free legal advice for any party who wished it: "It is essential that anyone entering an agreement which involved giving up the right to have the case decided in court is fully aware of the implications".24 The Mediation Co-ordinator therefore ascertained from both parties as to whether legal advice had been received. Where it had not, or where it was old, advice was offered and given by a member of Edinburgh Central CAB's panel of volunteer lawyers. Information is not available on the number of parties agreeing to a mediation hearing who took up this offer.

Setting up mediations

4.1.6 Most mediation hearings took place at Edinburgh Central CAB. Occasionally Edinburgh mediators used their own offices. Mediation hearings were provided free for both 'first' and 'second' parties. It was rare for lawyers to accompany parties to mediation, though they could accompany their clients should parties so wish it. If parties were successful in coming to an agreement at a mediation hearing, the mediator drew up the terms in a 'Heads of Agreement' document. Though this was not a legally binding document, it was possible to make it so through a solicitor. There appeared to be no formalised 'After-care' provision offered to parties.

4.1.7 Most mediation hearings were run by mediators trained by the Centre for Dispute Resolution (CEDR) or the Law Society of Scotland, though not every mediator was a lawyer. All volunteered for the task on a pro bono basis. When the number of volunteers dipped, the President of the Law Society of Scotland contacted all those lawyers who had joined the Law Society of Scotland ACCORD 25 scheme and four further volunteers agreed to join. The number of mediators involved at any one time ranged from six in November 1998 to fourteen in July 1999. The number of mediators involved in the Project was low at precisely the time when referrals to mediation appeared to take off. Some mediators reported that they were not always able to undertake a mediation within the short notice (two to three weeks) sometimes given and, in June 1999, the Mediation Co-ordinator reported the first occasion on which the service was unable to provide a mediator within the time scale sought by one of the parties. 26

4.2 The mediation project: monitoring the business

Databases

4.2.1 Data were collected on all referrals made by the In-court Advice Project to the Mediation Project between 1 December 1998 and 31 August 1999. Information was also collected on referrals made directly to the Mediation Project by sheriffs, by the Mediation Co-ordinator and by CABx. Synchronisation of the two databases was difficult (see 2.4 ).

Referrals from the In-court Advice Project: Phase 1 and 2

4.2.2 Data were inspected for information on referrals from the In-court Advice Project to the Mediation Project during the periods covered by the two research phases.

Table 4.1 Referrals from the In-court Advice Project

4.2.3 Between the periods April to December 1997 and December 1998 to August 1999, the number of clients referred from the In-court Advice Project to the Mediation Project increased threefold, from 34 to 99. Thus, if the impact of the In-court Advice Project on the Mediation Project was considerable during the first nine months of its introduction into Edinburgh Sheriff Court (see Cameron and Loughran, 1998), its impact on the Mediation Project was even more marked during the period covered by Phase 2 of the research. The proportion of all In-court Advice Project clients referred to the Mediation Project also increased over the two research phases, doubling from 5% of all clients in Phase 1 to 10% of all clients in Phase 2. The impact of the Mediation Project on the In-court Advice Project as an agency to which referrals could be made likewise increased between the two research phases.

4.2.4 The impact and increase in referrals from the In-court Advice Project must also be viewed in the context of client composition during the periods covered by the two phases of the research (see Table 3.3). Clients referred to the Mediation Project almost exclusively sought advice from the In-court Advice Project on matters pertaining to small claims and summary (non-heritable) procedure. Though the number of In-court Advice Project clients increased from 674 to 1017 over the periods covered by the two research phases, the number of small claims and summary cause clients increased from only 263 to 291. When clients seeking advice on matters pertaining to small claims and summary cause procedure alone are inspected, the referral role played by the In-court Advice Project is even more dramatic.

Table 4.2 Referrals from the In-court Advice Project

(restricted to small claims and summary cause clients)

4.2.5 While just over one in ten of all small claims and summary cause In-court Advice Project clients was referred to the Mediation Project in the period covered by Phase 1 of the research, one in three (34%) of all small claims and summary cause clients was referred to the Mediation Project during Phase 2.

Referrals to the Mediation Project: Analysis by sources of referral

4.2.6 The contribution of the In-court Advice Project to the Mediation Project during Phase 2 was examined by inspecting Mediation Project records for the number and sources of all referrals between 1 December 1998 and 31 August 1999. Altogether, 151 clients were referred to the Mediation Project over the Phase 2 period, as follows:

Table 4.3 Referrals to the Mediation Project

1 December 1998 to 31 August 1999

4.2.7 Two-thirds (99) of all referrals to the Mediation Project were made by the In-court Adviser. These clients were monitored by both the In-court Advice and Mediation Projects. Another 12% (18) were referred by the Mediation Co-ordinator directly from the court, 11% (17) from Central CAB, 3% (five) by sheriffs and one client by a friend. The remaining 11 clients ('Don't Know') were referred to the Mediation Project either by the Mediation Co-ordinator or by the Mediation Co-ordinator in her capacity as line manager or temporary replacement of the In-court Adviser. These remaining 52 Mediation Project clients did not pass through the In-court Advice Project and were not monitored by the In-court Advice Project as its clients. 27 Incompatibility in database systems did not allow cases to be compared along many important dimensions.

Referrals to the Mediation Project: Analysis by type of claim, procedural remit of case and procedural status of client

4.2.8 Information on types of dispute referred to mediation is incomplete (see 4.2.1 and 4.2.3 ). In 103 cases, mainly referrals made by the In-court Advice Project, monetary claims were by far the largest proportion of all referrals to the Mediation Project.

Table 4.4 Referrals to the Mediation Project by type of claim

1 December 1998 to 31 August 1999 * More than 100% due to rounding-off

4.2.9 Most referrals to the Mediation Project were around matters under small claims procedure.

Table 4.5.1 Referrals to the Mediation Project by procedural remit

1 December 1998 to 31 August 1999

4.2.10 Most small claims and summary cause referrals were made by the In-court Adviser while the two ordinary cause referrals were made by Edinburgh Central CAB.

Table 4.5.2 Referrals to the Mediation Project by procedural remit of case and source of referral

1 December 1998 to 31 August 1999 * More than 100% due to rounding-off

4.2.11 Clients referred straight from the court (by the Mediation Co-ordinator in court or by sheriffs) were more likely to be involved in disputes under small claims procedure than summary cause procedure. They were also more likely to be defenders than pursuers (61% defenders compared with 39% pursuers). This is likely to reflect the number of small claims and summary cause party litigants appearing in the court as defenders. Over two-thirds (67%) of all referrals made by the In-court Adviser were pursuers, however, as were over four-fifths (81%) of referrals made by Edinburgh Central CAB.

Referrals to Mediation Project: Analysis by procedural stage of referral

4.2.12 When referrals to the Mediation Project were inspected for the procedural stage at which they had been made, 70 (46%) clients were found to have been referred prior to raising an action, 14 (9%) after an action had been raised but prior to a Preliminary Hearing or First Calling, 47 (31%) at the time of a Preliminary Hearing or First Calling and 10 (7%) prior to a Full Hearing. The remaining 10 (7%) clients were referred at other procedural stages such as prior to a continued First Calling (2 clients), at the time of a continued First Calling (1 client), at the time of Full Hearing (1 client) and following decree (1 client).

Table 4.6 Procedural stage of referral to Mediation Project

1 December 1998 to 31 August 1999

4.2.13 The procedural stage at which clients were referred to the Mediation Project was found to be related to the agencies referring them.

Table 4.7 Procedural stage of referral to Mediation Project by source of referral

1 December 1998 to 31 August 1999

4.2.14 Prior to raising an action The In-court Advice Project and Edinburgh Central CAB were most likely to refer clients to the Mediation Project before raising an action. Of the 70 clients referred to the Mediation Project at this stage, the In-court Advice Project referred 52 and Central CAB referred 16. Of the 17 clients referred to the Mediation Project by Central CAB, 16 (94%) were seeking advice on matters which had not yet gone to litigation. Of the 99 clients referred to the Mediation Project by the In-court Advice Project, 52 (53%) were seeking advice on matters which had not yet gone to litigation.

4.2.15 Prior to Preliminary Hearing or First Calling Of the 14 clients referred to the Mediation Project prior to the action calling in court (either at a Preliminary Hearing or First Calling) but after an action had been raised, 12 were referred by the In-court Advice Project. Of the 99 clients referred to the Mediation Project by the In-court Advice Project, 12 (12%) were seeking advice on matters which gone to litigation but had not yet called in court.

4.2.16 At Preliminary Hearing or First Calling Of the 47 clients referred to the Mediation Project on the day on which their case first called in court, 18 were referred by the In-court Advice Project (17% of all cases referred by the In-court Advice Project) and 16 by the Mediation Co-ordinator-in-court (90% of all cases referred by the Mediation Co-ordinator located in the court). All 5 referrals to the Mediation Project by sheriffs were made when cases first called in court.

4.2.17 Prior to Full Hearing Of the 10 clients referred to the Mediation Project prior to a full hearing, 7 were referred by the In-court Advice Project, two by the Mediation Co-ordinator in court 29 and one by a friend of the client.

4.2.18 These findings reflect the different opportunities for consultation and referral which are available to the different referring agencies.

'First' and 'second' parties: Profile

4.2.19 Almost two-thirds (104 or 65%) of all 'first' parties were pursuers and 35% (56) were defenders. The proportion of pursuers and defenders amongst 'second' parties is reversed: 36% pursuers and 64% defenders. Since 46% of all referrals to mediation were made prior to embarking on litigation (see 4.2.12-4.2.18 above), the high proportion of pursuers amongst 'first' parties was to be expected.

4.2.20 Clients initially referred to the Mediation Project ('first' parties) were categorised as either individuals or representatives of small businesses in 144 cases. Over two thirds (101 or 70%) of all 'first' parties were individuals and 43 (30%) were representatives of small businesses. Information was also collected as to the characteristics of 'second' parties, that is, parties against whom clients initially referred to the Mediation Project were opposed, in 143 cases. Just over one third of 'second' parties (53 or 37%) were 'individuals', 75 (52%) were representatives of 'small businesses' while 13 (9%) were large businesses. A further two 'second' parties were public bodies or non-profit organisations.

Table 4.8 Composition of 'first' and 'second' parties

1 December 1998 to 31 August 1999 * Less than 100% due to rounding-off

4.2.21 Though 'first' parties were far more likely to be individuals and pursuers, this depended on agencies of referral to some extent. While 75% (63) of 'first parties' referred to the Mediation Project by the In-court Advice Project were individuals and 85% (11) of 'first' parties referred by Central CAB, only 39% (7) of 'first' parties referred by the Mediation Co-ordinator in court were individuals. 30 While 67% of 'first parties' referred to the Mediation Project by Edinburgh Central CAB were pursuers and 81% of 'first' parties referred by the In-court Adviser, only 39% of 'first' parties referred by the Mediation Co-ordinator in court were pursuers and the rest (61%) were defenders. Amongst 'second parties', pursuers were more likely to be small businesses than individuals (66% of all pursuers were small businesses while 34% were individuals) and defenders were only slightly more likely to be small businesses (47% of all defenders were small businesses while 42% were individuals).

4.2.22 While only 17% (3) and 23% (3) of 'second' parties in cases referred to the Mediation Project by the Mediation Co-ordinator and Central CAB respectively were individuals, almost half of all referrals by the In-court Adviser to the Mediation Project (38 cases or 46%) involved 'second' parties who were individuals. Most referrals by the Mediation Co-ordinator and Central CAB involved 'second' parties categorised as small businesses. Only the In-court Advice Project, however, made referrals to the Mediation Project which involved large businesses as 'second' parties (11 or 13% of all In-court Advice Project referrals). 31

4.2.23 Amongst 'first' parties, individuals were more likely to be referred to the Mediation Project prior to raising an action than at any other procedural stage. Of 101 individuals referred to the Mediation Project, 52% were referred prior to raising an action compared with 26% at First Calling/Preliminary Hearing. In these cases, 'second' parties were more likely to be individuals than businesses. Amongst 'first' parties, small businesses were more likely to be referred to the Mediation Project at First Calling/Preliminary Hearing than at any other procedural stage. Of 43 small businesses referred to the Mediation Project, 44% were referred at the time of First Calling/Preliminary Hearing compared with 30% prior to raising an action and 9% prior to First Calling/Preliminary Hearing. 'Second' parties were far more likely to be small businesses in cases referred at this procedural stage.

'First' and 'second' parties: Composition of cases

4.2.24 The highest proportion of cases referred to the Mediation Project involved 'first' parties who were individuals against small businesses (35%), followed by individuals against individuals (26%). There was information on the characteristics of the disputants in 138 cases referred to the Mediation Project, as follows:

Table 4.9 Composition of Cases referred to Mediation Project

1 December 1998 to 31 August 1999

'First' and 'second' parties: Representation

4.2.25 Differences in composition between 'first' and 'second' parties are reflected in their legal representation. There was information on the representation of 'first' parties in 142 out of 151 cases: 141 'first' party referrals were categorised as 'party litigants'. While only one 'first' party was legally represented, at least 47 (34%) 'second' parties were legally represented. The remainder of 'second' parties for whom there is information were either not represented or, because no legal action had yet been raised, it was either too early to know or the information was not recorded.

Table 4.10 Representation of 'First' and 'Second' Parties

1 December 1998 to 31 August 1999

4.2.26 Legal representation depended on party characteristics. Of the 47 'second' parties who were legally represented, only 10 were individuals while the rest were small and large businesses, public and voluntary bodies.

Table 4.11 Characteristics of 'second' parties and their representation

1 December 1998 to 31 August 1999

4.2.27 Amongst 'second parties, small businesses were twice as likely to be legally represented as individuals. Even amongst small businesses, however, only 40% were legally represented. Legal representation was only slightly higher amongst large businesses, but this was because most large companies were 'second' parties in cases referred to mediation before actions were raised. Hence, while they are most likely to have been legally represented had an action been raised, they have not been recorded as such.

4.2.28 Amongst 'second' parties, pursuers were twice as likely to be legally represented as defenders (51% compared with 25%). Indeed, parties most likely to be legally represented were 'second' party pursuers. 'Second' parties were most likely to be represented in cases involving rental deposit than any other dispute (43%), though these disputes represented only 10% of all cases referred to the Mediation Project. 'Second' parties were least likely to be legally represented in cases involving disputes over products and services. Most cases in which 'second' parties were legally represented involved disputes over debt (21 cases).

4.2.29 The In-court Advice Project was responsible for referring 25 of 47 cases in which 'second' parties were legally represented. Together with Central CAB, it was responsible for referring all 15 cases where it was too soon to know. This is because the In-court Advice Project and Central CAB have the opportunity to make referrals at an earlier procedural stage than other agencies of referral to the Mediation Project (see 4.2.12-4.2.18)

'First' and 'Second' Parties: Responses to mediation

Responses

4.2.30 All clients referred to the Mediation Project ('first' parties) were asked to make a formal response to their referral. More than half of all referrals (84 or 55%) confirmed their willingness to take up mediation while a further 13 (9%) agreed to allow the Mediation Co-ordinator to attempt to negotiate a settlement. Just over one quarter of all 'first' parties (41 or 27%) made no response to the request while a further 13 (9%) communicated their unwillingness to take up mediation.

4.2.31 'Second' parties were invited to mediation or negotiation in those cases where 'first' parties had agreed to mediation or negotiation. Of the 97 referrals to the Mediation Project who confirmed their willingness to take up mediation or negotiate through the Mediation Co-ordinator, there is information on the responses of 95 'second' parties. More than one quarter (29 or 31%) confirmed their willingness to take up mediation while a further 19 (20%) agreed to negotiate a settlement through the Mediation Co-ordinator. Just over one fifth (21) of all 'second' parties contacted made no response to the request while a further 24 (26%) communicated their unwillingness to take up the offer of mediation.

Table 4.12 Responses to mediation

1 December 1998 to 31 August 1999

'First' parties and responses to mediation

4.2.31 'First' parties were slightly more likely to agree to mediation if they were individuals rather than small businesses. Of 98 'first' parties categorised as individuals, 56% (55) agreed to mediation compared with 50% (20) of small businesses. Small businesses were slightly more likely to reject mediation than individuals (15% compared with 6%). Few differences between individuals and small businesses were found with regard to their willingness to negotiate or to non-response.

4.2.32 There were interesting differences between 'first' parties according to the type of dispute in which they were involved. In 103 cases for which there is information, eight out of ten referrals to mediation in cases involving rental deposit (80%) and five out of nine referrals in cases involving damages and personal injury (56%) agreed to mediation, compared with only three out of nine referrals in cases involving disputes over products and services (33%). However, the largest number of agreements to mediate arose from referrals in cases involving monetary claims in which 37 out of 74 referrals (50%) agreed to mediation.

4.2.33 The procedural stage at which 'first' parties are referred to mediation was found to make some impact on responses to their referral. 'First' parties were most likely to agree to mediation or negotiation prior to a full hearing (80%), while they were most likely to refuse mediation, or make no reply, when actions had already been raised but prior to First Calling or Preliminary Hearing (43%). The largest numbers agreeing to mediation amongst 'first' parties, however, were those amongst parties referred to mediation prior to raising an action (39 [56%] of 70 referrals to mediation) and amongst 'first' parties referred at the time of a First Calling or Preliminary Hearing (28 [58%] of 48 referrals to mediation). Because more referrals to mediation were picked up prior to raising an action or at their first court appearance, more agreements to mediation arose at these procedural stages. The probability that 'first' parties would agree to mediation, however, was higher in those cases which had already reached later procedural stages.

'Second' parties and responses to mediation

4.2.34 'Second' parties were more likely to agree to mediation if they were individuals or represented large businesses, rather than small businesses. Of 32 'second' parties categorised as individuals, 41% (13) agreed to mediation compared with 24% (11) small businesses but 38% (only 3 in number) large businesses. Small businesses were more likely than large businesses or individuals to reject mediation, more likely to respond and slightly more likely to negotiate. Individuals, on the other hand, were slightly less willing to negotiate and were more likely to make no reply to the invitation to mediate.

4.2.35 There were interesting differences between 'second' parties according to the type of dispute in which they were involved. In those cases where 'first' parties had agreed to mediation or negotiation, there were 14 agreements to mediation amongst 'second' parties in cases involving monetary claims, two in cases involving damages/personal injury and one in cases involving rental deposits. The same pattern was found amongst 'second' parties for agreement to negotiate, with almost all agreements (12 out of 14) being in cases relating to monetary claims. There was a very high non-response rate amongst 'second' parties in cases involving rental deposits.

4.2.36 The procedural stage at which 'first' parties were referred to mediation was found to make some impact on the responses of 'second' parties. 'Second' parties were most likely to agree to mediation prior to or at a First Calling or Preliminary Hearing and were least likely to agree to mediation before an action was raised (43% and 41% compared with 22%) though they were slightly more likely to agree to mediation prior to an action being raised than at any other procedural stage. They were most likely to abstain from responding or reject mediation prior to an action being raised (in 56% of cases) and, surprisingly, although numbers are small, prior to a Full Hearing (57% of cases). The largest proportion of 'second' parties who agreed to mediation (13 out of 29 'second' parties) were involved in cases which were first referred to mediation at the time of the First Calling or Preliminary Hearing

Mediation Hearings: Number and duration

4.2.37 Of the 151 referrals to mediation made between 1 December 1998 and 31 August 1999, dates were fixed for a mediation hearing in 24 of the 29 cases where 'second' parties had agreed to mediation. Though mediations were fixed for every month throughout 1999, more were set for February, March and October 1999 than other months. Altogether, 22 of the 24 mediations fixed took place. The length of each mediation hearing was recorded, with 14 taking half a day or more, and 8 taking less than half a day.

Outcome of referrals to the Mediation Project

4.2.38 Mediation was successful in almost all cases where a mediation hearing took place. Of the 22 cases which went to mediation, only two disputes were not successfully resolved at mediation. Of the 41 referrals to the Mediation Project which were resolved either by mediation or by the Mediation Co-ordinator conducting 'arms-length' negotiation, 31 (76%) settlements were known to have been honoured. There is no information on the remaining 10 negotiated or mediated settlements. All settlements on which there is information were known to have been honoured.

4.2.39 Case outcome was identified for 60 of the 151 cases in which referral was made to the Mediation Project, comprising the 48 referrals in which both 'first' and 'second' parties agreed to mediation or negotiation, and 12 referrals in which the 'first' or 'second' party had not agreed to them. Mediation was not solely responsible for resolving disputes outwith the courtroom. Disputes were resolved by the Mediation Co-ordinator, the In-court Adviser and by the parties themselves. Out of 151 referrals, 41 (27%) were successfully mediated or negotiated by the Mediation Co-ordinator.

Table 4.13 Case outcomes

1 December 1998 to 31 August 1999

4.2.40 The success rate of referrals to the Mediation Project might be even higher if cases settled by the parties themselves were included. Referral to the Mediation Project could have played some part in 7 of the 11 cases in which settlement was eventually negotiated by parties themselves. In four out of 11 cases, however, 'first' parties had either refused mediation or had not replied to the invitation. Hence, 'first' party refusal to mediate may tell us little about the eventual outcome of any case. Any conclusion as to the impact of referral to the Mediation Project must include comparison between parties which took up the offer of mediation or 'assisted negotiation', parties which did not take them up, and small claims and summary cause litigants who were not referred to the Mediation Project in the first place.

4.2.41 The Mediation Co-ordinator was responsible for bringing as many disputes to a successful conclusion by 'arms-length negotiation', as actual mediation hearings. In many cases, this was where 'second' parties had not agreed to a mediation hearing but were willing to negotiate. Whether cases were brought to a successful outcome by mediation or by negotiation appeared to depend on the characteristics of 'second' parties. Where 'second' parties were individuals (23 cases), disputes were more likely to be resolved by a mediation hearing (52% of cases) and less likely to be resolved by the Mediation Co-ordinator undertaking 'arms-length negotiation' (26%) or by the parties themselves (13%). Where 'second' parties were small businesses (32 cases), disputes were less likely to be resolved by a mediation hearing (19%) and more likely to be resolved by the Mediation Co-ordinator negotiating 'at-a distance' (38%) or by the parties themselves (22%). Thus, even amongst 'second' parties who indicated an agreement to mediate or negotiate, as was mainly the case in the 60 disputes on which information is available, it would appear that small businesses either have a preference for negotiation or are more likely to negotiate a settlement before their cases reach mediation. On the other hand, the only cases known to have gone to proof after unsuccessful mediations or negotiation involved 'second' parties which were small or large businesses.

Outcomes and sources of referral

4.2.42 Altogether, 151 referrals were made to the Mediation Project. Of these, 53 were known to have resolved their dispute outwith the courtroom, either through mediation, by negotiating a settlement through the Mediation Co-ordinator or by negotiating a settlement themselves.

4.2.43 Of 20 successful mediations, 12 (60%) had been referred to the Mediation Project by the In-court Adviser, three (15%) by Edinburgh Central CAB, two by the Mediation Co-ordinator in court and two (10%) by sheriffs.

4.2.44 Of 21 referrals to the Mediation Project which were successfully negotiated by the Mediation Co-ordinator, 15 (71%) were referred by the In-court Adviser, two (10%) by the Mediation Co-ordinator in court and one by Edinburgh Central CAB.

4.2.45 Of 11 referrals to the Mediation Project which were successfully negotiated by the parties themselves, 10 had been referred by the In-court Adviser and one by Edinburgh Central CAB.

4.2.46 The contribution of different agencies to referrals which were successfully concluded by dispute resolution outwith the court room, whether by mediation, negotiation by Mediation Co-ordinator or by the parties themselves, is presented below.

Table 4.14 Dispute resolution and agencies of referral

1 December 1998 to 31 August 1999

4.2.47 Between December 1998 and August 1999, the highest number of 'successful' referrals was made by the In-court Advice Project. Sheriffs, however, appear to have had the highest rate of success, though the numbers of referrals made by sheriffs was low in comparison. 32 This is interesting because 'first 'parties referred by the In-court Adviser were more likely to respond negatively or not at all to the offer of mediation (43% of all referrals by the In-court Advice Project compared with 22% of referrals by the Mediation Co-ordinator in court). 'Second' parties in cases referred by the In-court Adviser were no more and no less likely to refuse or fail to reply to an offer to mediate than 'second' parties in cases referred by other agencies.

Outcomes, party characteristics and legal representation

4.2.48 In 62 cases where both 'first' and 'second' parties responded to the invitation to mediate: party characteristics and legal representation made some impact upon the outcome of these cases.

4.2.49 Out of 42 individual 'first' party referrals to mediation, 11 (26%) cases were resolved with the help of a mediation hearing while 15 (36%) were resolved with the help of the Mediation Co-ordinator. Out of 20 small business 'first' party referrals to mediation, 8 (40%) were resolved with the help of a mediation hearing while only 4 (20%) were settled with the help of the Mediation Co-ordinator. 'Second' party characteristics also made an impact on outcome. Out of 23 individual 'second' party referrals to mediation, 12 (52%) were resolved in a mediation hearing while 6 (26%) were settled with the help of the Mediation Co-ordinator. Out of 32 small business 'second' party referrals to mediation, only 6 (19%) were resolved in a mediation hearing while 12 (38%) were settled with the help of the Mediation Co-ordinator. Thus, amongst 'first parties', dispute resolution was more likely to be aided by a mediation hearing in the case of small businesses and with the help of the Mediation Co-ordinator negotiating 'at a distance' in the case of individuals. Amongst second parties, however, dispute resolution was more likely to be aided by a mediation hearing in the case of individuals and with the help of the Mediation Co-ordinator negotiating 'at a distance' in the case of small businesses.

4.2.50 Whether or not 'second' parties were legally represented appeared to have some impact on the outcome of referrals to mediation. Out of 35 'second' parties without legal representation, 40% (14) of disputes were resolved in a mediation hearing, 26% (9) were settled with the help of the Mediation Co-ordinator and 14% (5) were settled by the parties themselves. Out of 22 'second' parties with legal representation, only 18% (4) of disputes were resolved in a mediation hearing though 23% (5) were settled by the parties themselves and 32% (7) were settled with the help of the Mediation Co-ordinator. Disputes in which 'second' parties were without legal representation were more likely to be resolved in a mediation hearing than were 'second' parties with legal representation. Disputes in which 'second' parties were without legal representation were less likely to settle them themselves than 'second' parties with legal representation. Surprisingly, they were more or less equally likely to settle with the help of the Mediation Co-ordinator negotiating "at a distance". There was no obvious relationship between 'second' party representation and unsuccessful mediation or negotiation.

4.2.51 There is information on type of dispute in only 44 of the cases in which both parties agreed to mediation or negotiation. Since most of these cases involved monetary claims, no conclusions may be drawn as to the implications of dispute type for successful mediation or negotiation.

Outcomes and procedural stage of referral

4.2.52 Whether referrals were brought to a successful outcome in a mediation hearing or with the help of the Mediation Co-ordinator in negotiating a settlement - 'assisted negotiation' - appeared to depend on the procedural stage at which disputes were initially referred to the Mediation Project. In 56 cases in which 'first' and 'second' parties had agreed to mediation or negotiation, referrals made prior to raising an action were more likely to be settled with the help of the Mediation Co-ordinator negotiating 'at-a-distance' than in a mediation hearing. Thus, of 24 cases referred to the Mediation Project prior to raising an action, nine (38%) were settled with the help of the Mediation Co-ordinator. Referrals made after an action had been raised (either before or at the time of First Calling or Preliminary Hearing) were more likely to be resolved in a mediation hearing than by 'assisted' negotiation or 'arms-length' mediation. Of seven cases referred to the Mediation Project after actions were raised but prior to calling in court, four were settled in a mediation hearing compared with one by 'arms-length' mediation. Of 25 cases referred to the Mediation Project at First Calling or Preliminary Hearing, nine (36%) were settled in a mediation hearing compared with six (24%) by 'arms-length' mediation. This suggests that where actions are in their earliest stages, that is, where they have not even been raised, 'assisted' negotiation should always be attempted before the mediation process is embarked upon.

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