Compulsory mediation for small claims – a sign of things to come?

Introduction

The planned reforms to the Civil Justice system will see all small claims, up to the value of £10,000, referred automatically to an hour-long mediation service, provided by the court service free of charge.  The proposal is for the mediation to be compulsory, meaning a claim cannot progress to a hearing until the mediation has been completed.  

Our mediation experts are here to guide you through the new process and proposals.

The proposed new mediation process

The process will consist of:

• the parties engaging in a telephone mediation, conducted by a qualified mediator, who will talk individually to the parties to see if there are any common grounds.
• if a resolution can be agreed, a settlement agreement will then be entered into to mark the conclusion of the court proceedings. 

Benefits of the proposed new system

With there being an estimated 272,000 cases that will be given access to this free mediation service, it is hoped that this will enable even more cases to be settled quickly, with the resulting consequence being a reduction of costs being incurred by parties in bringing and defending claims.

Possible concerns with the new mediation process

For some, though, the proposal comes with some hesitation. 

• if a party is forced to mediate, will they enter into that process with a true willingness of trying to resolve the dispute, or will they simply attend to ‘tick a box’ because they are being forced to attend?  
• further, will an hour be sufficient for the parties?

Why are the changes needed?

For years, there has been an increasing drive for parties to try to explore settlement of their disputes both before the commencement of proceedings, and during proceedings. 

• for those who engage in the process, many consider it to be extremely worthwhile. 
• if settlement has not proved possible at the mediation itself, it frequently paves the way for the parties to continue settlement discussions, often resulting with a positive outcome being achieved. 

10-week consultation process

The consultation will be for 10 weeks, following which the responses received will be published.  It is widely anticipated that the proposals will be approved, especially given the direction we have seen from the courts over the years of actively encouraging the use of mediation.  If, as predicted, mediation does become compulsory for small claims, the focus will then turn to the question of – will it end there or will it be adopted for more complex and high value matters?

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