Small claim mediation: not a tick-box exercise

In its recent consultation into the use of mediation in the civil justice system, the Ministry of Justice (MoJ) proposed a requirement to attempt mediation for all proceedings allocated to the small claims track in the county courts. Continued failure to comply could result in a judge making an adverse costs order or striking out a party’s claim or defence.

The plans to introduce compulsory mediation for claims valued up to £10,000 recognise the benefits mediation can bring by reducing the volume of civil cases being taken to court as well as providing parties with a lower cost, less complex and faster route to resolution.

Broadly speaking, the expansion of mediation services will be welcomed by lawyers working in the field, but such plans must include a careful assessment of both parties’ engagement with the process to avoid becoming a tick-box exercise.

Measuring engagement

In order to be effective, it is important suitable sanctions are applied for non-cooperative parties, subject to the court having the power to forego mediation where appropriate. Decisions on individual exemptions will need to be made based on the value of the claim, previous attempts at settlement, the personal relationships between parties, the complexity of the issues, any allegations of dishonesty – and whether there is a realistic prospect of mediation succeeding.

Adequately assessing a party’s involvement in mediation is complex, so where compulsory mediation does take place, it is vital careful, measurable assessments are made to ensure both parties take the process seriously and it was not open to abuse, with users taking part simply to avoid sanctions. Both parties should be made aware of such sanctions from an initial stage to encourage genuine participation in the process.

Vulnerable users

It is also important vulnerable parties are aided through the mediation process, with measures including pre-discussions with a mediator, ensuring they have suitable support and the offer of possible alternatives. Given the rapid evolution of the way legal services are accessed that occurred during the pandemic, mediation services should build further on this digitisation. That means ensuring remote access is available to those who wish to use it, while giving users who do not have access to technology an alternative, so they are not disadvantaged.

National standards

While there are many good professional mediators available, at present providers vary a great deal in terms of legal knowledge and capability, a situation that does not provide adequate protections for users. We would like to see a national standard for mediation so we don’t have the current situation where almost anyone can call themselves a mediator.

We do not want to see any future regulation become too onerous or rigid for those working in the profession, but we do need to instil confidence in the process among both the public and the legal profession, with measures in place to prevent parties from being subject to poor advice or being pressured into making decisions in relation to their dispute. Professional bodies are the ideal candidate to create and manage the accreditation process.

Conclusion

The expansion of mediation would also benefit from further public legal education, something CILEX has long advocated for. The government, as acknowledged in its proposal, will also need to invest further in employment and training of court-employed mediators to ensure successful adoption of mediation in small claims.

Provided it is properly funded and adequately regulated, expansion of mediation has the potential to reduce the volume of civil cases that are taken to court while providing the parties involved with a cheaper and faster route to resolving their case.

We hope by putting in place measures to protect and support vulnerable users as well as properly assessing participation, while making sanctions very clear in advance, that it will be possible to deliver a uniformly high-quality service for small claims disputes and instil public confidence in the mediation process.

Simon Garrod is head of policy and public affairs at CILEX: cilex.org.uk