Why civil mediation is the smarter choice than pressing for your day in court
Stephanie Miers looks at the pros and cons of mediation vs. court, ahead of plans to make mediation compulsory for civil claims up to £10,000
If you blinked and missed the news about mediation becoming compulsory in civil cases, don’t worry - you’re not alone. Despite mediation potentially reducing legal expenses and saving time, any fanfare heralding its looming arrival has been muted at best.
For background, the Ministry of Justice (MoJ) recently confirmed that mediation will become compulsory for civil claims valued up to £10,000, with parties facing costs sanctions or a claim strike-out if they fail to engage in the dispute resolution process.
Initially, the focus will be on specified money claims – which make up 80 per cent of small claims – such as drivers being sued over parking fines or businesses recovering debts from customers. Once the defence is filed and the case is allocated to the court’s small claims track, parties will be informed that mediation is the next step.
There are no exemptions to the compulsory mediation scheme and all cases allocated to the small claims track will be subject to the scheme. If one party does not attend a mediation that has been arranged, the court would be able to apply sanctions or even strike out that party’s case.
Aside from low awareness of these looming changes, mediation might require an image makeover in order to challenge the perceptions among those claimants who really want their day in court. While a court decision is legally binding, it can be costly, stressful and time-consuming to get what can sometimes feel like a hollow victory.
Mediation, on the other hand, is a flexible and confidential process that involves appointing a mediator, who is an independent and impartial person, to help the parties reach a mutually acceptable solution. The mediator does not decide the outcome of the dispute, but rather facilitates communication and encourages cooperation between the parties.
The case for mediation
I have set out below, what I believe is the case for mediation versus seeking a court judgement.
Cost-effective: Mediation is usually cheaper than litigation, as it avoids court fees, legal fees and other expenses associated with a trial. According to the MoJ, mediation can save up to £2,500 per case compared to going to court.
Time-saving: Mediation can be arranged quickly and completed within a few hours or days, depending on the complexity of the dispute and the availability of the parties. Litigation, on the other hand, can take months or even years to reach a final judgment, especially if there are appeals or delays.
Private: Mediation proceedings and results are confidential and not available to the public or the media. This can protect the reputation and privacy of the parties involved and prevent sensitive information from being disclosed. Court cases are usually open to the public and can attract unwanted attention or publicity.
Voluntary: Mediation is based on the consent and participation of the parties, who can choose their mediator, set their own agenda, and decide whether to accept or reject any proposals. The parties can also withdraw from mediation at any time without prejudice. Court cases are imposed by the law and subject to the rules and procedures of the court.
Flexible: Mediation allows the parties to explore a wide range of options and solutions that may not be available in court. The parties can tailor their agreement to suit their needs and interests, rather than being bound by legal precedents or principles. Mediation can also address non-legal issues, such as emotions, relationships, or future plans.
Satisfactory: Mediation can result in a win-win outcome for both parties, as they have more control over the process and the outcome. The parties are more likely to comply with a voluntary agreement that they have helped to create than with a court-imposed order that they may resent or disagree with. Mediation can also preserve or improve the relationship between the parties by reducing hostility and promoting understanding.
In my opinion, mediation is an effective tool for resolving civil claims because it can save time, money and stress for both parties, while allowing them to reach a mutually satisfactory and flexible solution that preserves or improves their relationship. Mediation is also confidential, voluntary and adaptable to the needs and interests of the parties.
Stephanie Miers is a Consultant Solicitor at Setfords