Mediation as a Form of Dispute Resolution in Scotland Flashcards
When and where did the modern form of mediation emerge?
Answer: The modern form of mediation emerged from the 1976 Pound Conference in Minnesota, USA.
What were the main recommendations of the Scottish Mediation report titled “Bringing Mediation into the Mainstream in Civil Justice in Scotland”?
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.
What is the main aim of the Proposed Mediation (Scotland) Bill lodged in 2019?
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.
List three barriers that may hinder the development of mediation in Scottish construction disputes.
Answer: Three barriers include lack of awareness, cultural resistance, and legal professionals’ reluctance.
What is the significance of the 2007 Scottish Civil Courts Review in the context of mediation in Scotland?
Answer: The 2007 Scottish Civil Courts Review highlighted the need for increased use of mediation in the civil justice system.
Why has mediation gained popularity as an alternative dispute resolution method?
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.
Question 7: In which areas of civil justice in Scotland has mediation become increasingly popular?
Answer: Mediation has become increasingly popular in various fields, including construction disputes.
Question 9: What potential benefits does mediation offer in resolving construction disputes in Scotland?
Answer: Mediation offers a voluntary, cost-effective, and efficient process that facilitates communication and negotiation between parties, ultimately leading to a mutually acceptable resolution.
Question 10: Why is it unlikely that mediation will become compulsory in Scotland despite its increasing popularity and potential benefits?
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.
What is the role of a statutory duty mediator as proposed in the Mediation (Scotland) Bill?
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.
How might the reluctance of legal professionals hinder the development of mediation in Scottish construction disputes?
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.
What challenges may parties face due to the absence of a formal disclosure process in mediation?
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.
How might limited availability of mediators with expertise in construction disputes affect the development of mediation in Scotland?
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.
What role does the Scottish government play in promoting mediation as an alternative dispute resolution method?
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.
How might increased references to mediation in standard form contracts impact its use in Scotland?
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.
