“Integrated” mediation in small claims

By Henrietta Jackson-Stops

response

committed to fully integrate mediation as a key step in the court process for small civil claims valued up to £10,000, starting with specified money claims which make up 80% of small claims

This means that parties will be referred automatically to a free hour-long telephone session with a professional mediator provided by HM Courts and Tribunals Service (HMCTS) before their case can be progressed to a hearing.  Note that there is no reference to “mandatory” mediation albeit that that is essentially what is being introduced for 80% of small claims.

The majority of the mediation community have welcomed these changes as an opportunity for parties to avoid the time and stress of going to trial and then, often, not getting the result that they hoped for. There are some mediators who see that this quick and rough process is not worthy of the term “mediation” and will result in a wider misunderstanding of the benefits of the process.  However, I believe that we can distinguish between different types of mediation with the right terminology  - as we currently do between family, SEN, workplace, and commercial mediation.

I have recently had to pursue a small claim, ironically to recoup mediation fees from a law firm, so have first hand experience of the process.  The first frustration was that although I, obviously,  wanted to engage in the one hour voluntary telephone mediation, the other side, despite having agreed to it, didn't turn up.

The hearing date was on a date when I was not in the country and so I was motivated to try and settle the claim; I also did not want to spend a whole day in Northampton County Court.  It took a lot of effort and time on my side to get the other side to engage but eventually we did settle the claim but not until I had paid a further £180 trial fee in addition to the claim fee (£115).  There is no doubt in my mind that had the other side been forced to turn up to the small claims mediation the claim would have settled, or at least, it would have focussed both parties on the issues between us and, possibly, have resulted in settlement at an earlier stage saving both myself and the court time and resources.

Those who suggest that this initiative is denying parties “justice” or increasing costs are mistaken.  Parties will not be denied their day in court if that is what they want - they can choose not to settle the claim and continue to pursue it, albeit after paying the trial fee and taking the risk that they will be successful at trial.  Or they can choose to save themselves the time and stress of going to court and choose to settle the claim at a figure they can live with.  As painful as it is to settle at a figure which is lower than the one you believe you are entitled to, this is often offset by the relief that the dispute is over and you can move on with running your business without wasting any more time on pursuing litigation.

It is going to be interesting to see how this initiative is resourced.  Personally I would have liked to have seen the 1 hour time limit given some flexibility so that, in the event that the parties are close to settlement, they can ask the mediator for extra time.  It will also be interesting to see how the court will respond to a party’s failure to engage with the mediation.  The Government has indicated that as mediation will be part of the standard court process, sanctions should be in line with other failures to comply with court rules.  However, whether Judges will impose the ultimate sanction of strike-out remains to be seen.  We will be watching developments closely!