Mediation is the way forward…

26 Jul 2012

In early 2011, the Government published its consultation paper ‘Solving disputes in the county courts: creating a simpler, quicker and more proportionate system’ with a view to introducing a major overhaul to the current civil justice system in England and Wales. 

One of the ideals to this new reform was to envisage a system where “disputes are resolved in the most appropriate forum, with processes and costs being commensurate with the complexity of the issues involved.”  Therefore, in the paper the Government suggested one way of meeting this goal by creating a requirement for all cases below the small claims limit to be automatically referred to mediation, before being considered for a hearing.

Mediation is a form of alternative dispute resolution (ADR) and a way of resolving disputes between two or more parties with a view to settlement via an impartial third party known as the mediator.  The benefits of using such method to settle legal disputes are:

  • Costs – the courts offer a free small claims mediation service which takes much less time to achieve a resolution rather than proceeding to the final hearing, this in turn means less money spent on fees and solicitor charges;
  • Confidentiality – mediation is strictly a without prejudice confidential negotiation arena;
  • Control – the two parties in dispute have control and can contribute to the final decision of the dispute at hand, whilst at hearing, although both sides are allowed to present their case, it is ultimately left to the Judge to decide;
  • Support – the mediator is an impartial body there to guide both parties through the process and offer an alternative mutual resolution to the dispute in question.

Moving forward, the Government, in its response to the Consultation has decided to press on with automatic mediation referral, but stressed it is not to be taken as a compulsory measure, but more a requirement that encourages settlement via engagement with a small claims mediator.  The Government also considered ways in which such mediation would be effective in its purpose via use of both the free small claims mediation service coupled with perhaps civil and commercial mediation providers under contract with Her Majesty’s Courts and Tribunal Service (HMCTS).

Given its premature beginnings, it has been suggested that matters with a value of up to £5,000 will be subject to automatic referral to mediation.  Only once established and any prevalent issues are ironed out will further consideration be given to also automatically referring cases up to £10,000 to mediation.

In its’ consultation the Government also acknowledged that mediation as well as other forms of ADR are not widely recognised as a key mechanism towards resolving disputes pre-litigation.  Therefore, the Government also proposed the need to assess various avenues of delivering effective mediation through use of telephone mediation, face-to-face, Judge led, as well as web and hard copy formats being made available.  With this in mind, it is also vital that legal professionals stress the importance of negotiation and settlement when discussing options and the use of mediation and ADR with clients as alternative to litigation.

At the recent Civil Procedure Rule Committee meeting, the Ministry of Justice unveiled its plans to introduce a pilot scheme in the Salford Business Centre which was due to commence in June 2012 or as soon as practicable.  The pilot is aimed to test the viability of the Government’s proposals as well as administrative procedures.