Mediation as a Form of Dispute Resolution in Scotland Flashcards

1
Q

When and where did the modern form of mediation emerge?

A

Answer: The modern form of mediation emerged from the 1976 Pound Conference in Minnesota, USA.

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2
Q

What were the main recommendations of the Scottish Mediation report titled “Bringing Mediation into the Mainstream in Civil Justice in Scotland”?

A

Answer: The main recommendations included making it compulsory for parties to consider mediation, referring parties to an Early Dispute Resolution Office (EDRO), lodging an EDRO report, providing free mediation for Simple Procedure actions, and placing a duty on judges to encourage mediation.

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3
Q

What is the main aim of the Proposed Mediation (Scotland) Bill lodged in 2019?

A

Answer: The main aim of the Proposed Mediation (Scotland) Bill is to increase the use and consistency of mediation services for certain civil cases by establishing a new process of court-initiated mediation that includes an initial mandatory process involving a statutory duty mediator.

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4
Q

List three barriers that may hinder the development of mediation in Scottish construction disputes.

A

Answer: Three barriers include lack of awareness, cultural resistance, and legal professionals’ reluctance.

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5
Q

What is the significance of the 2007 Scottish Civil Courts Review in the context of mediation in Scotland?

A

Answer: The 2007 Scottish Civil Courts Review highlighted the need for increased use of mediation in the civil justice system.

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6
Q

Why has mediation gained popularity as an alternative dispute resolution method?

A

Answer: Mediation has gained popularity due to its voluntary, confidential, and efficient nature, and its ability to address the high costs and delays associated with traditional legal systems.

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7
Q

Question 7: In which areas of civil justice in Scotland has mediation become increasingly popular?

A

Answer: Mediation has become increasingly popular in various fields, including construction disputes.

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8
Q

Question 9: What potential benefits does mediation offer in resolving construction disputes in Scotland?

A

Answer: Mediation offers a voluntary, cost-effective, and efficient process that facilitates communication and negotiation between parties, ultimately leading to a mutually acceptable resolution.

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9
Q

Question 10: Why is it unlikely that mediation will become compulsory in Scotland despite its increasing popularity and potential benefits?

A

Answer: It is unlikely to become compulsory due to the voluntary nature of mediation, which emphasizes that parties should willingly engage in the process rather than being forced into it.

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10
Q

What is the role of a statutory duty mediator as proposed in the Mediation (Scotland) Bill?

A

Answer: The role of a statutory duty mediator is to facilitate the initial mandatory mediation process in court-initiated mediation, helping parties navigate the mediation process and attempt to resolve their dispute.

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11
Q

How might the reluctance of legal professionals hinder the development of mediation in Scottish construction disputes?

A

Answer: Legal professionals’ reluctance can hinder the development of mediation if they perceive it as a threat to their traditional role in dispute resolution or if they have limited experience with or understanding of the mediation process, leading to reduced support or promotion of mediation as an option for their clients.

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12
Q

What challenges may parties face due to the absence of a formal disclosure process in mediation?

A

Answer: The absence of a formal disclosure process may result in parties withholding crucial information, making it more challenging to resolve disputes effectively and potentially reducing trust and transparency in the mediation process.

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13
Q

How might limited availability of mediators with expertise in construction disputes affect the development of mediation in Scotland?

A

Answer: Limited availability of mediators with expertise in construction disputes could make it challenging to find a suitable mediator for a particular case, potentially deterring parties from choosing mediation as a dispute resolution method or leading to less effective outcomes.

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14
Q

What role does the Scottish government play in promoting mediation as an alternative dispute resolution method?

A

Answer: The Scottish government has recognized the benefits of mediation and actively promotes it as an ADR method through legislation and policy initiatives, such as the Proposed Mediation (Scotland) Bill and the 2007 Scottish Civil Courts Review.

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15
Q

How might increased references to mediation in standard form contracts impact its use in Scotland?

A

Answer: Increased references to mediation in standard form contracts will likely lead to greater awareness and acceptance of mediation as a dispute resolution method, resulting in more widespread use in various fields, including construction disputes.

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16
Q

How does providing free mediation for Simple Procedure actions contribute to the development of mediation in Scotland?

A

Answer: Providing free mediation for Simple Procedure actions reduces the financial barrier to accessing mediation services, encouraging more parties to consider and engage in mediation to resolve disputes.

17
Q

What role do judges play in promoting mediation according to the recommendations of the Scottish Mediation report?

A

Answer: Judges have a duty to encourage mediation by actively promoting it as a dispute resolution option, helping to raise awareness and increase the use of mediation in civil justice matters.

18
Q

How can addressing the barriers to mediation ensure its potential as an effective dispute resolution method in Scottish construction disputes?

A

Answer: Addressing barriers such as lack of awareness, cultural resistance, and legal professionals’ reluctance can lead to increased acceptance and understanding of mediation, enabling more parties to engage in the process and benefit from its voluntary, cost-effective, and efficient nature.

19
Q

What are some key factors that contribute to the effectiveness of mediation in resolving disputes?

A

Answer: Key factors contributing to the effectiveness of mediation include its voluntary nature, the confidentiality of the process, the ability to facilitate communication and negotiation between parties, and its potential for cost-effectiveness and efficiency compared to traditional legal systems.

20
Q

Why is the voluntary nature of mediation considered an important aspect of its effectiveness?

A

Answer: The voluntary nature of mediation is important because it ensures that parties willingly engage in the process, fostering a more collaborative and open-minded environment that is conducive to finding mutually acceptable resolutions to disputes.

21
Q

What impact does the confidentiality of mediation have on its effectiveness as a dispute resolution method?

A

Answer: Confidentiality in mediation encourages open communication and candor between parties, as they can discuss their concerns and interests without fear of public exposure or future repercussions, facilitating a more productive negotiation process.

22
Q

How can increasing awareness of mediation as a dispute resolution option help overcome the barrier of cultural resistance in Scottish construction disputes?

A

Answer: Increasing awareness of mediation and its benefits can help dispel misconceptions and address resistance stemming from a lack of familiarity with the process or a preference for traditional adversarial approaches, promoting a more open-minded attitude toward mediation as a viable and effective dispute resolution method.

23
Q

How might a lack of expertise in construction disputes among mediators affect the effectiveness of mediation in Scotland?

A

A lack of expertise in construction disputes among mediators may result in less effective outcomes, as mediators with specific knowledge in this area are better equipped to understand the complexities of the disputes and help parties navigate the negotiation process toward a satisfactory resolution.

24
Q

What measures can be taken to overcome the barrier of legal professionals’ reluctance to promote mediation in Scottish construction disputes?

A

Answer: Measures to overcome this barrier can include providing education and training to legal professionals on the benefits and processes of mediation, promoting the value of mediation as a complementary tool to traditional dispute resolution methods, and encouraging collaboration between legal professionals and mediators to achieve the best outcomes for clients.