The Sound of One Hand Clapping: The Gill Review's Faint Praise for Mediation

Abstract

This article considers the 2009 Scottish Civil Courts Review, popularly known as the 'Gill' Review after its Chairman, Lord Gill (Scotland's second most senior judge). It speculates about the reasons for the lack of concrete encouragement for mediation in the Report's recommendations, rendered particularly striking by the contrast with robust judicial encouragement in England & Wales and throughout the Common Law world. It sets out a taxonomy of ways in which jurisdictions can help litigants to consider mediation and finds that the Report has rejected even the gentlest of these. In spite of this, the article suggests that the Scottish Government could still underpin dispute resolution beyond the confines of the courts by clarifying the position regarding confidentiality and admissibility and by rendering mediated outcomes more readily enforceable.

Keywords: Mediation, Civil Courts, Judicial Encouragement, European Directive on Cross-Border Mediation

JEL Classification: K40