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SUPPORTING COURT USERS:
The In-Court Advice and Mediation Projects in Edinburgh Sheriff Court
RESEARCH PHASE 2
CHAPTER 6 CONCLUSIONS
6.1 The in-court advice project
6.1.1 In the nine month period covered by Phase 2 of the research (Months 21-30 of the In-court Advice Project), 1648 consultations were undertaken with 1017 clients. When adjusted for differences in record keeping and compared with the first nine months of the In-court Advice Project, the number of clients was found to have increased by 50% and the volume of business (number of consultations) handled by the In-court Advice Project had increased by 66%. The increase in business was absorbed by the Project with the support of an additional adviser on the day of the heritage court.
6.1.2 The large increases in the number of consultations and clients primarily related to advice and assistance sought with regard to heritage actions raised by the City of Edinburgh Council. Compared with Phase 1, however, there was also a very marked rise in the number of clients and consultations relating to The Debtors (Scotland) Act 1987 and summary cause procedure, while the number of consultations and clients seeking advice relating to small claims procedure showed the slowest rate of growth. Though small claims clients were most likely to consult with the In-court Adviser more than once, they were a minority and almost two thirds of all clients consulted with the In-court Adviser only once.
6.1.3 During Phase 2, therefore, the In-court Advice Project was successful in providing services across a wider spectrum of the procedures within its remit. This was partly due to innovations such as the insertion of information about the In-court Advice Project into summonses of ordinary cause cases relating to The Debtors (Scotland) Act 1987. Compared with Phase 1, the In-court Advice Project was also successful in reaching a larger population of persons requiring advice and assistance, a higher proportion of whom were facing legally represented opponents. It was also successful in reaching an increasing number and proportion of clients prior to their cases calling in court.
6.2 The mediation project
6.2.1 New arrangements, which formally linked the Mediation and In-court Advice Projects, were successful in offering more court users an alternative to litigation. During Phase 2, more than one third of all In-court Advice Project clients with matters relating to small claims and summary cause cases were referred to the Mediation Project. Over two thirds of all clients referred to the Mediation Project were referred by the In-court Advice Project. Compared with other sources of referral to the Mediation Project, the In-court Advice Project was more likely to refer individuals and pursuers. It was also more likely to refer them prior to raising actions or prior to their cases calling in court.
6.2.2 When parties to the dispute were examined together, just over a third of all cases referred to the Mediation Project involved initial clients (or 'first' parties) that were individuals and 'second' parties that were small businesses while a quarter of all cases involved 'first' and 'second' parties who were individuals. 'First parties' referred to the Mediation Project were most likely to agree to mediation or a negotiated settlement either prior to a full hearing or prior to raising an action. They were least likely to agree when actions had already been raised but had not yet been called.
6.2.3 Less than one in six referrals to the Mediation Project led to a mediation hearing. Where they did so, they were mainly successful in reaching settlement. However, settlement was reached in almost as many cases by the 'assisted negotiation' service provided by the Mediation Co-ordinator. Disputes were more likely to be brought to a successful resolution by 'assisted negotiation' where 'first' parties were individuals and where clients had been referred to the Mediation Project prior to raising actions. Disputes were more likely to be brought to a successful resolution by a mediation hearing where 'first' parties were small businesses and where clients were referred to the Mediation Project after raising actions. A more rigorous 'after-care' service was called for by one mediator, though the research itself did not uncover any instance where this was lacking.
6.2.4 Just as the In-court Advice Project was successful in extending access to advice, so the Mediation Project was responsible for extending access to negotiation, whether at arms-length or at a face-to-face mediation hearing. In addition to providing litigants with alternative methods of resolving disputes once litigation had been embarked upon, the findings suggest that the Mediation Project also offered unassisted litigants an opportunity to avoid litigation altogether by assisting them in negotiating a settlement prior to raising an action.
6.3 The sheriff court
6.3.1 Shrieval awareness as to the presence and capacity of the In-court Advice Project to address some of the problems presented by unassisted litigants in court was found to have increased over the 30 months under review. This was reflected in the increasing number of referrals made by sheriffs to the In-court Advice Project. By Phase 2, the In-court Advice Project was also less dependent on sheriffs for accommodating to the organisational requirements of the Project. This was largely due to the emergence of a system, based on co-operative links between the In-court Advice Project and Clerks of Court, which helped to ensure that the In-court Adviser's business was more evenly spaced over the time that court was in session and that no litigant missed being called in court. This was also responsible for streamlining the business of the court and the business of solicitors.
6.3.2 By Phase 2, the advantages of facing defenders advised by the In-court Advice Project were also becoming apparent to solicitors. Like sheriffs, solicitors found that the In-court Advice Project helped them address some of the problems presented by having to deal with party litigants. In particular, the In-court Advice Project provided solicitors with an opportunity to negotiate with unassisted litigants. This was particularly so for the City of Edinburgh Housing Department, which mainly faced unassisted litigants in the heritage court, many of whom were clients of the In-court Advice Project. There were some doubts, however, as to whether the opportunity for negotiation provided by In-court Advice Project could be sustained under the new rent arrears policy adopted by the City of Edinburgh Council in August 1999.
6.3.3 Nearly half of all In-court Advice Project clients were referred on to other agencies for advice and assistance during Phase 2. Heritage clients and defenders were mainly referred on to other advice agencies while small claims and summary cause clients were mainly referred on to the Mediation Project. Like Phase 1, however, the In-court Advice Project was able to deal with most clients seeking advice on small claims without referring them on to other agencies. Compared with Phase 1, there was very little improvement in the quality and consistency of information as to take-up of referrals. There was close agreement between advice agencies, however, as to the importance of more directive referrals and an appointments system for achieving higher take-up rates.
6.4 the wider context
6.4.1 The In-court Advice Project continued to provide services designed to assist unrepresented court users, many of whom were facing legally represented opponents in court. The Project was successful in reaching a large number of court users and assisting them in understanding the issues that had brought them to court, the options that were now available to them, the ways in which they could present their case most effectively in the court, the implications of their court hearings and what actions they were now required to take. The In-court Advice Project therefore contributed to the promotion of active and inclusive citizenship in the population served by Edinburgh Sheriff Court
6.4.2 The In-court Advice Project also addressed problems raised for the court by the presence of unrepresented court users. The Project contributed to the performance of judicial duties by assisting unrepresented litigants in presenting their cases to the court. This promoted confidence that judicial decisions were being made on the basis of accurate and relevant information. The In-court Advice Project also appeared to optimise court resources by smoothing the passage of unrepresented litigants through the sheriff court, by helping them to get quickly and accurately to disputed issues and by diverting some cases from the court.
6.4.3 The In-court Advice Project augmented its services to persons without legal assistance through its formal affiliation with the Mediation Project. While the In-court Advice Project assisted unrepresented litigants in court, the Mediation Project was instrumental in assisting unrepresented litigants and claimants outside the court. The mediation service provided them with a non-litigating option for resolving their disputes and assisted them in taking this option either by 'arms-length' negotiation or at a mediation hearing. The success of the mediation service highlights a need that is less visible than the needs of unrepresented litigants appearing in court, namely the needs of claimants for assistance in initiating and conducting negotiation. Indeed, unrepresented litigants may often choose litigation over negotiation because negotiation is not perceived to be available to them. This perception is occasionally inaccurate and very often accurate. Lawyers, paradoxically, usually opt for litigation only once negotiation has failed. They, too, often find it difficult and usually find it inappropriate to negotiate with unrepresented litigants. This explains with solicitors representing parties in dispute with Project clients often welcomed the opportunities for negotiation that the In-court Adviser and Mediation Co-ordinator provided them.
6.4.5 Many of the research findings reported here of relevance to issues identified in the Scottish Office consultation paper Access to Justice: Beyond the Year 2000.43 In particular, the research provides a basis for discussion about the provision of community legal services in Scotland and the arrangements that may be made for improving and strengthening the provision of accessible advice and assistance on legal problems within communities. The In-court Advice Project in Edinburgh Sheriff Court piloted new arrangements for targeting unmet need and delivering legal services in Scotland. With its new mediation component, these services related not only to assistance in court and assistance with litigation, but also to assistance in resolving disputes through negotiation.
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