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

RESEARCH PHASE 2

4.3 The Mediation Project in The Sheriff Court

The Mediation Project and the In-court Advice Project

4.3.1 The Mediation and In-court Advice Projects were closely associated with each other through funding and personnel, and this had clear benefits for the co-ordination of the two Projects. 33 It was also, however, responsible for presenting problems in the operation of the Mediation Project. The maintenance of neutrality throughout the mediation process was reported to be a basic requirement of mediation. Because of this, so the Mediation Co-ordinator reported, she was not permitted to offer legal advice of any kind to those parties she followed out of the court. She therefore would introduce herself by saying that she could help them, if they so desired, but that any help she could give them had to be restricted to procedural matters. If they wanted legal advice, they could see the In-court Adviser since she was under no such obligation to maintain neutrality. This division of labour, in turn, allowed the Mediation Co-ordinator to speak directly to those referred to mediation about the mediation process.

4.3.2 Some difficulties arose, however, when the Mediation Co-ordinator was standing in for the In-court Adviser. The Mediation Co-ordinator reported that she had to be certain that there was no possibility of mediation before she gave legal advice because this would otherwise compromise her position of neutrality. This could mean, therefore, that those seeking legal advice were not offered it when there was some possibility of referral to mediation. Since the Mediation Co-ordinator did not stand in for the In-court Adviser routinely, it is unlikely that this occurred frequently. What the problem illustrates, however, is the importance of keeping the role of the In-court Adviser and Mediation Co-ordinator entirely separate. While benefits may arise from the close organisational relationship between the two projects, either neutrality is compromised or legal advice cannot be offered when the separation of roles is blurred.

The Mediation Project, litigants and litigation

4.3.3 The Mediation Project was promoted in court in several ways. Firstly, the presence of the Mediation Co-ordinator in the courtroom while the small claims and summary cause court was in session brought the Mediation Project within the court's purview. The Mediation Co-ordinator and In-court Adviser also made a special point of bringing to the attention of the court the role which the Mediation Project was playing outwith the court. Thus, for example, where cases were dismissed after a successful referral to the Mediation Project, one of them was in attendance in court to report on the grounds for dismissal: "In this way, the word 'mediation' impinges and, sometimes after that, the sheriff may twig".

4.3.4 In the Sheriff Court, the In-court Adviser was mainly responsible for referring clients to mediation prior to raising an action or before their action called in court. The Mediation Co-ordinator was responsible for referring parties from the court. This often involved following parties out of the court after their case had called for a Preliminary Hearing or First Calling. According to the Mediation Co-ordinator, parties were not receptive to mediation where the Mediation Co-ordinator was required to speak to both parties at the same time: "probably due to the level of antagonism between them". Parties with whom she managed to speak prior to going into court and who then informed the bench of their interest in mediation when their case was called, however, were most receptive. This also prompted sheriffs to suggest mediation to other parties whose cases were subsequently called.

4.3.5 While many of the litigants approached in court were found to be receptive, some rejected the offer of referral to the Mediation Project on the grounds that it was a "soft" option and not enforceable. These were often litigants, so the Mediation Co-ordinator explained, who had typically "tried eight letters and six telephone calls and had "psyched" themselves up for court". Nevertheless, some of those making the most vociferous objections did eventually accept the offer of referral. Some litigants found the role which referral to mediation played in the court as particularly persuasive: "You can tell the court that you have also offered mediation and that has been rejected. And you may get a 'brownie' point - especially in front of some sheriffs who are keen on mediation". In other words, even amongst litigants with no intention of participating in a mediation hearing, acceptance of the offer of referral to mediation and the offer of mediation to their opponent was seen as an important device for self-presentation in court. As one member of the In-court Advice Project staff explained, parties wished to be seen as reasonable and wanted to demonstrate that they have tried negotiation and mediation before resorting to court action; "They also see it as a point in their favour, and envisage drawing the sheriff's attention to the intransigence of the other side". Referral to the Mediation Project served a similar function amongst 'first' parties where there was little hope that 'second' parties would agree: "You can mention it in your statement of claim and score some points. It's helping and empowering party litigants by giving them a way to play the system which their opponents know so well".

4.3.6 Mediators, however, were not convinced as to the success of this gambit in court. One mediator thought that while "holding out an olive branch cannot be seen to do any harm", it was nevertheless a deeply cynical view. Though containing a grain of truth, it was not wholly acceptable to him on the grounds that "courts are there to let people pursue their rights". Indeed, all those involved in the Mediation Project found the relationship of mediation to litigation to be an issue of extreme complexity (though, as we might say in the trade, it raised empirical rather than ontological questions). Mediation could operate in the shadow of litigation, as complementary to litigation and instead of litigation. The Mediation Co-ordinator suggested, however, that mediation was often successful in the shadow of the court, in those cases where there was some certainty that: " unless the problem is worked out, there will be a return to court where the decision rests with an external authority, the sheriff, and not the parties concerned". This was confirmed by some parties to a mediation hearing.

4.3.7 Mediation could also play a role at any stage of the litigation process, depending on the dispute itself and on the disputants. In one mediator's view: "There is always room for shuttle diplomacy and this is what lawyers do anyway - but without a mediator". This may explain, for example, why so many individuals without legal representation and before raising an action opted for referral to the Mediation Project, whether for a mediation hearing or for the assistance of the Mediation Co-ordinator in negotiating a settlement. Unassisted parties were sometimes unaware that negotiation was an option, they were uninformed as to how to go about negotiating a settlement, and they lacked the capacity to negotiate successfully. For this reason, many parties were found to have resorted to litigation before negotiation and in place of negotiation (see also Samuel, 1997). The Mediation Project provided unassisted litigants and would-be litigants with a means to negotiate, whether by 'shuttle diplomacy' or in a mediation hearing. Indeed, one mediator conceptualised mediation as "assisted negotiation". 34 The Mediation Project functioned to divert litigants and potential litigants who had not tried negotiation away from litigation and from the court room, at least until such time as negotiation was found to be unsuccessful.

4.3.8 Mediation also had a place once litigation was embarked upon. Indeed, contrary to popular wisdom about mediation, it could even speed up litigation. In the view of one mediator-lawyer "It sometimes takes a party three years to come around to make offer which the other party proposed three years before. Mediation can help that process - it can even speed it up".

4.3.9 The relationship of mediation to litigation also depended on what the different parties to the dispute wanted out of the dispute. While litigation permitted people to pursue their rights, so one mediator argued, mediation held out the promise of a greater range of desired outcomes than litigation: "There are so many things that mediation can do and so many different kinds of resolutions which they can come up with which a sheriff cannot and would never let you do". The relationship of mediation to litigation also depended on the circumstances of different parties. While mediation provided choice and an alternative to litigation for some, choice was illusory for others:

4.3.10 Most interviewees were of the opinion that since the relationship between mediation and litigation was not straightforward, guidelines for referral to mediation should never intervene in any party's wish for mediation:

The Mediation Project and solicitors

4.3.11 Both solicitors interviewed during Phase 2 research identified "at least four or five sheriffs keen on mediation". Both independently reported that Mediation had "taken off" in the small claims/summary cause court five to six months prior to interview (November - December 1999). One solicitor had been involved as agent for the pursuer in several cases in which defenders had been referred to the Mediation Project. In these cases, defenders had been approached by or consulted with the Mediation Co-ordinator or In-court Adviser prior to appearing in court: "They then stand up in court and some sheriffs really like it". As the agent for 'second' parties, he did not usually suggest to his clients that they agree to a mediation hearing. This is because "we don't think there is a defence in any of the cases we go to litigation on.....I'm not a big fan of it because we often see it as a delaying tactic". In one case, however, there was no choice in the matter: " there was nothing we could do because the Sheriff referred it to mediation". One solicitor acknowledged the usefulness of mediation

Her clients (mainly pursuers), however, were not usually agreeable to mediation since defenders had been given ample opportunity to negotiate and this had not been taken.

4.3.12 The Mediation Co-ordinator reported resistance to offers of mediation in cases in which 'second' parties were represented by lawyers. She was of the view that some lawyers confused mediation with arbitration while some were of the opinion that mediation was unlikely to be successful because there was already "too much bitterness and bad faith". Lawyers were also often afraid that mediation could delay matters. If so, the Mediation Co-ordinator was able to assure them that mediation could be arranged while their client was awaiting the next procedural stage. The Mediation Co-ordinator also reported that lawyers tended to be more enthusiastic in small claims cases, particularly if they were representing individuals rather than businesses and the case was going to a full hearing. Some lawyers, however, were reported to welcome the prospect of settlement over shrieval adjudication, whatever the procedure or monetary value of the claim involved.

4.4 The Mediation Project in operation: Clients and mediators

'Assisted' negotiation and mediation hearings

4.4.1 Settlement was negotiated with the assistance of the Mediation Co-ordinator in many of the disputes between those referred to the Mediation Project. This was partly because the Mediation Co-ordinator reported that she sometimes actively encouraged negotiation over mediation:

Indeed, 'full' mediations were encouraged only under special circumstances:

4.4.2 Some clients, however, expressed a wish from the outset to avoid proceeding to a full mediation hearing. One client, for example, was concerned as to the amount of time which could be spent at a mediation hearing. Another was concerned as to the amount of time it could take before a mediation hearing was set up. Geography also played a role in the preferences of some clients referred to the Mediation Project. While one of the main attractions of both assisted negotiation and mediation was that they were free, there was therefore also considerable concern amongst clients as to the opportunity costs of a mediation hearing. The time involved could be very costly for some clients, for example, tradesmen. In those cases where a negotiated settlement was assisted by the Mediation Co-ordinator, the indebtedness and gratitude of clients to the Mediation Project for the avoidance of a mediation hearing was often very apparent.

The Mediation Hearing

4.4.3 Due to the limited scope and resources of the research project, only a very superficial glimpse of the mediation process operated by the Mediation Project was obtained during the research period. The sample of clients selected for interview may be illustrative of some of the processes at work, but there are no grounds for questioning their representativeness.

4.4.4 Mediation is often considered to be the centre piece of alternative dispute practices because of its commitment to disputant empowerment and party control of the settlement process. Indeed, as both mediators interviewed during the course of the research argued, that was why most lawyers do not want cases decided by an external authority in the courts. Mediation is intended to give the parties concerned ownership of the dispute so that any outcome is not a reflection of third party intervention but of the third party's (the mediator's) facilitation of joint authorship. This might explain why the Mediation Co-ordinator was able to report that mediation usually ends up better for most cases, even in those where parties feel they have lost: "The loser leaves mediation often saying that it could have been worse".

4.4.5 Ownership and empowerment as a key principle of mediation is best illustrated when mediation is not freely entered into. In one case, a tenant had signed a lease which contained a clause agreeing to some form of alternative dispute resolution should any dispute arise. A dispute did arise at the end of the rental period, namely, over the return of the deposit. At that point, mediation did not feel as if it had been freely entered into:

Under this condition, mediation was unable to promote dispute ownership or to permit parties to retain ultimate voice in the process and outcome. 35

4.4.6 This was also found to occur when cases were "sent" by the sheriff to mediation. These cases provide further illustration of the conditions under which mediation hearings may be inappropriate. Mediation is designed to preserve long term relationships. One mediation hearing was successful, for example, because the 'second' party reported that he wished to continue his working relationship with the first party, even though he believed there was little to negotiate in the particular case. Where long-term relationships are irrelevant, however, as is usually the case on the termination of tenant-landlord contracts, the mediation process is designed to bring closure to the case "through a mutually acceptable solution that allows all parties to move forward positively" (Clinton and Cuzzo, 1999). This is unlikely to occur when parties have not opted for mediation but feel themselves to have been forced into it.

4.4.7 Mediation as a process of empowerment was stressed by all those involved in the operation and management of the Mediation Project who were interviewed. Properly conducted, mediation was able to provide adequate checks and balances where there were likely to be inequalities in power. This was less likely to be provided in the court room, particularly where party litigants were concerned. Mediators believed that experienced mediators were able to empower party litigants in ways which were not available to sheriffs. They could be more inquisitorial than sheriffs and they could help all parties to the dispute to identify their interests. Indeed, while mediation or 'empowerment by participation' may be seen as an alternative to a professional representation model of client empowerment (Myers and Wasoff, 2000), its function where no professional representation is available may be even more crucial to the empowerment of litigants. As we have already seen (see Table 4.10), all except one 'first' party referred to the Mediation Project were without legal representation. Whether or not parties to mediation felt more empowered by the process was not within the remit of Phase 2 of the research and could not be ascertained from the interviews conducted with clients referred to the Mediation Project, not least because those who had participated in a mediation hearing could not compare it with a court action.

The Mediation Project in Action: The Mediators

4.4.8 Two mediators were interviewed and both expressed the importance of careful preparation and experienced handling at every stage of the mediation process. Investment in training was needed to cover every stage of the mediation process: dealing with first inquiries and the initial paperwork; handling the actual mediation hearing; and providing 'after-care".

4.4.9 Both parties and mediators needed preparation. Successful mediation hearings, so one mediator argued, partly depended on parties being prepared for mediation with a full understanding of their rights prior to mediation. Without this knowledge or understanding, mediation was likely to disempower rather than empower parties. While mediation hearings conducted under these conditions may lead to settlements, they were not always satisfactory:

It was the mediator's view, however, that it was not necessary for all parties to take legal advice prior to mediation:

4.4.10 Mediators were also dependent for successful mediation on preparation undertaken prior to the mediation hearing. One of the mediators interviewed felt there was a need for each party to prepare a statement prior to the hearing "so that mediation is not taken entirely cold". Another mediator mentioned the need for further attention to the gathering of paperwork by the Mediation Project prior to the mediation hearing: "You can't get a full picture if one person has documents but the other party comes without their documents".

4.4.11 Finally, successful mediation was dependent upon both parties having the authority to mediate at all stages of the mediation process. This required care in the invitation of parties to mediate and the setting up of mediation hearings. Indeed, both mediators interviewed reported involvement in hearings which ultimately failed because one party to the mediation did not have the necessary authority to bind the party which it was representing at the mediation hearing.

4.4.12 At the mediation hearing itself, the experience of the mediator was crucial for the success of the hearing. Mediation, so it was pointed out, is a delicate and sensitive business:

4.4.13 The delicacy of the mediation process was emphasised by one mediator in her call for a rigorous post mediation after-care service. This, so she felt, was difficult for the Mediation Project to provide, as currently funded and organised. She made the general observation that mediations often fail because of the absence of a well-resourced service to deal with last minute doubts and late reservations.

4.4.14 Some concerns as to proportionality were also raised. Since all mediation hearings were undertaken on a pro bono basis, the issue was of time and not money. Precisely because no money was changing hands, so it was suggested, the principle of proportionality was not being observed: "If you allow a small claims case one full day, it will take that. If it does not deserve to go beyond half a day, it should not be allocated more".

4.5 Summary of findings

The Mediation and In-court Advice Projects (4.1.1-4.1.7)

4.5.1 The Mediation Project was brought more closely into the organisation and operation of the In-court Advice Project from April 1998 onwards. This was facilitated by operational linkages between the two projects. Clients were referred to the Mediation Project by both the Mediation Co-ordinator and the In-court Adviser who evaluated the appropriateness of mediation in each case. All clients to whom mediation was first suggested, (categorised as 'first' parties), were given a leaflet about mediation. If 'first ' parties agreed to mediation, ''second" parties or their agents were subsequently contacted by the Mediation Co-ordinator. All parties were offered access to free legal advice from the panel of voluntary lawyers serving Edinburgh Central CAB, though it was not known how many took this up.

4.5.2 In many cases where both parties agreed, the Mediation Co-ordinator first attempted to facilitate a negotiated settlement between the parties. Where this was not possible, or where negotiation failed, a hearing was conducted. Most mediation hearings took place at Edinburgh Central CAB and were conducted on a pro bono basis by mediators trained by the Centre for Dispute Resolution or the Law Society, though not every mediator was a lawyer. The number of mediators involved at any one time ranged from six to fourteen though there were occasions when no mediator was available to conduct a hearing at short term notice.

Monitoring the business (4.2.1-4.2.52)

4.5.3 During Phase 2, 99 clients of the In-court Advice Project - constituting 34% of all small claims and summary cause clients - were referred to the Mediation Project, compared with 34 clients during Phase 1. The Mediation Project therefore constituted an important agency to which the In-court Advice Project was able to refer its small claims and summary cause clients for assistance. Two thirds (66%) of all Mediation Project clients were referred by the In-court Advice Project, with a further 12% (18) referred by the Mediation Co-ordinator in court, 11% (17) by Edinburgh Central CAB and 3% (5) by sheriffs. Information is available mainly on the 99 clients referred to the Mediation Project by the In-court Advice Project.

4.5.4 Of 103 cases referred to the Mediation Project during Phase 2 of the research, most (72%) involved monetary claims while 10% involved disputes over rental deposits, 9% involved disputes over products and services and 9% involved disputes over damages and personal injury. Most 'first' parties referred to the Mediation Project were involved in small claims disputes (76%) and a large proportion of them (65%) were pursuers. Clients referred directly from the court, whether by the Mediation Co-ordinator or sheriffs, were more likely to be defenders. Because pursuers were likely to seek advice at an earlier stage and because 'first' parties were dominated by pursuers, referrals to the Mediation Project were more likely to be made prior to cases calling in court (58%) or prior to a full hearing (7%) than on the day when the case called in court (31%). Almost two thirds of the 99 clients referred by the In-court Advice Project were referred prior to raising actions or prior to their cases calling in court.

4.5.5 'First' parties were most likely to be individuals (70%), the rest (30%) being categorised as representatives of small businesses. 'Second' parties, however, were most likely to be representatives of small businesses (52%), though 9% were categorised as large businesses and the rest (37%) as 'individuals'. Where 'second' parties were pursuers, however, they were far more likely than defenders to be small businesses (66% compared with 47%). Amongst 'first' parties, individuals were most likely to be referred to the Mediation Project before actions were raised than at any other procedural stage while small businesses were more likely to referred to the Mediation Project on the day of a Preliminary Hearing or First Calling.

4.5.6 When 'first' and 'second' parties are looked at together, the highest proportion of cases referred to the Mediation Project involved individuals as 'first' parties against small businesses as 'second' parties (35% of all cases referred). This was followed by individuals against individuals (26%) and small businesses against small businesses (19%). Only one 'first' party was legally represented compared with 47 (34%) 'second' parties. 'Second' parties which were legally represented were more likely to be pursuers rather than defenders, and to be businesses rather than individuals.

4.5.7 More than half of all 'first' parties referred to the Mediation Project (55% of 84 clients) confirmed their willingness to take up mediation while a further 9% (13) agreed to allow the Mediation Co-ordinator to attempt a negotiated settlement. Small businesses were more likely to reject mediation than individuals. In cases involving rental deposits and claims for damages, there was a marked willingness amongst 'first' parties to go to mediation. 'First' parties were most likely to agree to mediation or negotiation prior to a full hearing while they were least likely to agree when an action had already been raised but prior to the Preliminary Hearing or First Calling.

4.5.8 Of the 97 'second' parties contacted following the agreement of 'first' parties, 31% confirmed their willingness to take up mediation, while a further 20% agreed to attempt a negotiated settlement through the Mediation Co-ordinator. A higher proportion of individuals (41%) were willing to take up mediation than small businesses (24%). Small businesses, however, were more willing to try negotiation than individuals. Amongst 'second' parties, there was a greater willingness to mediate or to negotiate in cases involving monetary claims while there was a very high non-response rate in cases involving rental deposits (that is, amongst the landlords who had kept them).

4.5.9 Of 151 referrals to mediation in the nine month period covered by Phase 2 of the research, dates were fixed for a mediation hearing in 24 cases and 22 mediation hearings were conducted. Eight took less than half a day while 14 took a half a day or more. Only two of them were unsuccessful in that no settlement was reached. A further 21 cases were successfully concluded by the Mediation Co-ordinator using 'arms-length' mediation, that is, 'assisted' negotiation. Where 'first' parties were individuals, disputes were more likely to be brought to a successful conclusion by 'arms length' mediation. Where 'first' parties were small businesses, however, they were more likely to be brought to a successful conclusion through a mediation hearing. The opposite was the case amongst 'second' parties. Where 'second' parties were individuals, disputes were more likely to be brought to a successful conclusion through a mediation hearing. Where 'second' parties were small businesses, however, they were more likely to be brought to a successful conclusion through 'arms-length' negotiation. 'Second' parties without legal representation were more likely to resolve their disputes at a mediation hearing than those with legal representation. Referrals to the Mediation Project made after the action had been raised were more likely to be resolved at a mediation hearing than through 'arms-length' negotiation while referrals made prior to raising an action were more likely to be resolved by 'assisted' or 'arms-length' mediation.

4.5.10 Cases referred by the In-court Adviser to the Mediation Project not only constituted the majority of referrals but also the majority of 'successful' referrals (of 99 cases referred to the Mediation Project by the In-court Adviser, 37 were successfully concluded). Of the 41 cases resolved either in a Mediation Hearing or by the Mediation Co-ordinator during Phase 2, all cases for which there is information (76%) are known to have been honoured.

In the Sheriff Court (4.3.1-4.3.12)

4.5.11 The In-court Adviser was mainly responsible for referring clients to the Mediation Project as they came in to her office to consult with her, while the Mediation Co-ordinator was responsible for referring parties from the court. While close association between the two projects had clear benefits for their co-ordination, it also presented problems in the operation of the Mediation Project, most noticeably with regards to the maintenance of neutrality. This arose particularly on those occasions when the Mediation Co-ordinator was standing in for the In-court Adviser.

4.5.12 Parties approached in court were most responsive to mediation when they were apart from their opposing party. Some litigants rejected the offer of mediation on the grounds that it was a 'soft' option while others might have accepted it as an important device for enhancing self-presentation in the court. There was some agreement that mediation was often successful in the shadow of litigation. It was suspected, however, that many individuals were litigating in place of negotiating, often because they did not know how to negotiate. Hence, it was often individuals without legal representation who were the first to respond favourably to the offer of 'arms-length' mediation.

4.5.13 Solicitors who observed the In-court Adviser and Mediation Project in the court were of the view that mediation was "taking off' in the court, with an increasing number of sheriffs showing an interest in it. They acknowledged the usefulness of the Mediation Project in those cases where, for whatever reason, parties had been unable to negotiate.

Clients and mediators (4.4.1-4.4.14)

4.5.14 The Mediation Co-ordinator encouraged full mediation hearings only under special circumstances and usually tried to negotiate a settlement prior to the fixing of a mediation hearing. Some clients, however, wished for an 'arms length' mediation from the outset, mainly because of the opportunity costs of a full mediation hearing.

4.5.15 Mediation hearings were found to be appropriate and successful where they could offer empowerment to the disputants. They were found to be inappropriate in those cases where disputants had been obliged to attend a mediation hearing. Mediations hearings were also found to be appropriate where the maintenance of long term relationships was desirable. Properly conducted, so mediators believed, mediation was well able to deal with inequalities of power. Indeed, mediators were able to empower party litigants in ways often not available to sheriffs.

4.5.16 Mediators called for greater investment in mediator training to cover every stage of the mediation process, from those dealing with first inquiries through to those offering 'after-care' services. Good preparation was needed by both mediators and parties while the experience of mediators was crucial for the success of the mediation. One mediator called for care to ensure that those invited to the mediation had the authority to bind the parties while another mediator called for a rigorous post mediation 'after-care' service. Some concerns were raised as to proportionality which, since all mediation hearings were undertaken on a pro bono basis, was an issue of time rather than money.

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