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Mediation: new options

16 March 15

An update from the Scottish Legal Complaints Commission on its continuing focus on mediation

by David Buchanan-Cook

In a recent column (Journal, October 2014, 42), I highlighted the increase which the Commission was seeing in the resolution rate of complaints which participate in mediation. That article also highlighted the benefits to practitioners in taking up the offer of mediation – even if it leads to only partial resolution of a complaint. Currently, four out of every five cases that participate in mediation agree a settlement.

Those familiar with the SLCC’s complaints process will be aware that mediation is generally offered to parties once a complaint about inadequate professional services (IPS) has been assessed as eligible.

While the ability to offer mediation is included within the SLCC’s legislation, the Act does not specify when mediation can be offered.

Since the previous article, we have been exploring additional opportunities for the parties to a complaint to engage in mediation at other points in the complaints process. We are already seeing significant success in this expanded approach, particularly in relation to the following two areas.

Investigation stage

Where an IPS complaint cannot be resolved through mediation, it proceeds to a formal investigation stage. This is generally a detailed part of the process which, by its very nature, can take a number of months.

Throughout this stage, in addition to ingathering and evaluating the available evidence, the case investigator will be assessing the extent to which the parties are close to agreement. Where appropriate, this can involve the case investigator brokering a settlement which is acceptable to both parties. Currently, just over 10% of complaints which reach the investigation stage resolve on that basis.

More recently we have extended the case investigators’ toolkit by including the option of considering mediation during the investigation stage. This can be either where it was perhaps not offered after eligibility or was not accepted by one or both parties initially. In one recent complaint, mediation had previously been turned down by the solicitor. However, having taken up a further offer at this later stage in the process, and achieved a successful resolution, he described the process as “fabulous”.

It can also be appropriate to re-offer mediation during the investigation stage where previous mediation has taken place but proved unsuccessful.

The end-point of the investigation stage is generally the production of the investigations recommendations. Again, we have recently identified a number of complaints where, in view of the comments received on the investigations report, it has proved successful to offer mediation at this stage.

An important point to make here is that while, in the above examples, we have offered mediation at the investigation stage, there is nothing to prevent a solicitor from requesting this, or making a proposal to settle the complaint, at this point. In addition to the other advantages of early resolution, settlement of a complaint through mediation, or otherwise, avoids the possibility of having to pay a complaints levy should the complaint go on to a determination committee and be upheld against you.

Hybrid complaints

The other area where we are actively exploring the possibility of mediation is in relation to some hybrid complaints – complaints which contain elements of both conduct and IPS. Under the current system, such complaints require to go through both the Society’s and the Commission’s complaints processes in full and consecutively. This combined process can take up to two years.

We are now offering mediation for some of those hybrid complaints where the conduct aspects have already been investigated and determined by the Society and the complaint has been returned to the Commission to investigate the IPS elements.

Although this is a very recent initiative, we are already finding that this approach can be successful in resolving the IPS aspects of some hybrid complaints. This has the added benefit of avoiding the complaint – and the parties – having to go through two complete investigations.

Being creative

These recent initiatives are further examples of the ongoing work which the SLCC is committed to in improving the legal complaints process in Scotland.

As part of our focus on early resolution, we are always open to suggestions from the profession about how this can be more readily achieved. This applies to our processes in general.

However, we also welcome and encourage proposals from individual solicitors, on a case-by-case basis, as to how individual complaints might more easily be resolved. We are always happy to facilitate – or broker – innovative resolution suggestions at whatever stage a complaint may have reached.

David Buchanan-Cook is head of oversight at the Scottish Legal Complaints Commission. Oversight is the area of the SLCC responsible for overseeing how the professional bodies deal with conduct complaints; monitoring and reporting trends in complaints; and producing guidance and best practice notes on complaint handling 

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