Increasing use of mediation in the civil justice system – Law Society response
All defended small claims would be automatically stayed for 28 days and referred to the Small Claims Mediation Service for a free appointment with a court-trained mediator.
Under current proposals, parties would be required to take part, even if they do not wish to.
The Ministry of Justice (MoJ) consultation sought views on whether there should be:
- any exemptions for types of case or individual circumstances
- more comprehensive regulation or accreditation of the civil mediation sector
While mediation and other forms of alternative dispute resolution (ADR) should be used wherever appropriate, we do not support the compulsory use of mediation where it may be:
- detrimental to either party, or
- prevent access to justice
We have strong reservations about the government’s proposals as we're concerned that compulsory mediation will, in some cases, prevent parties from accessing justice.
Instead, we'd prefer adequate signposting and education to increase the uptake of mediation in appropriate cases and at an appropriate time.
We're concerned the changes may create a two-tier system: where some parties can access justice and others can only access the means to end a dispute – but potentially not in a just way.
If the government does forge ahead with compulsory mediation in small claims, it must:
- run a pilot with clearly defined parameters, including timeframes and measures of success
- evaluate data from the pilot thoroughly to guide any further steps
- consider how the Small Claims Mediation Service will handle such a large volume of disputes effectively
- provide litigants with clear guidance on what it means to undertake mediation and the legal consequences for those involved
- consider whether one or both parties would be legally represented (we're concerned about the potential power imbalances)
Also, if the government is to consider making mediation mandatory in other claims, we'd support a compulsory accreditation scheme for civil mediators. However, we stop short of supporting more regulation for our members who are also mediators, unless the evidence shows that it's required.
What this means for solicitors
Solicitors working in small claims may see significant changes to how their cases progress.
The MoJ hopes its proposals will result in up to 20,000 extra cases a year settling away from court and free up to 7,000 judicial sitting days for more complex cases.
We await information from the government as to how the mandatory mediation scheme would work in practice, and which types of cases may be exempt.
The consultation closed on 4 October 2022.
The government is analysing the feedback and will report in due course.