Imagine taking a mediator out for dinner.
They’d sit there weighing up every option, hearing the waiter argue the merits of the salmon and the steak, before deciding to have a little of both (and possibly doubling the bill). I’d be on my second bottle before they’d got through the starter options. In dispute resolution the mediators are exalted like miracle workers, able to settle any dispute and keep those fat cat lawyers out of the equation.
The Ministry of Justice loves them, convinced they offer the solution for easing the burden on county courts. Enthralled ministers believe it can solve the so-called compensation culture, like spotty teenagers hoping to be god’s gift to women through indiscriminate use of a Lynx deodorant. So why did the department lose its bottle when it came to the crunch?
This week came the MoJ’s long-awaited (a euphemistic way of saying four months late) report into solving disputes in the county court. Many of the recommendations were expected, not least because the government has been briefing on them for weeks. The RTA Portal is extended, less than two years after its birth. Small claims will be limited in the county court to £10,000, a figure likely to rise to £15,000 within this parliament.
The government believes that up to 80,000 more cases each year will be diverted to a simple small claims mediation process conducted over the telephone. Quite who will pick up the phones, when staff numbers in the public sector are already stretched, is open to question (of course, the answer is that private operators will be contracted, but that doesn’t sit comfortably with the cost-saving rhetoric).
The debate over mediation I’ll leave to others. Done well, there’s no doubt it can speed up the justice system, but there is always the risk of coercing clients into compromising on cases they deserve to win in full. But my biggest surprise was reserved for the government’s admission that mediation will not be mandatory. For months ministers have extolled the virtues to the point we know them off by heart. Speculation was that mandatory mediation was seriously considered, only to be dropped at the last moment. According to its own report, the MoJ says mediation can ‘resolve disputes efficiently and quickly at a fraction of the cost of litigation, while maintaining potential damage to business relationships’.
It is, apparently, transparent, responsive and conciliatory.
Yet for such a wondrous idea, it is curious the government allowed users the escape clause. You won’t find that in Italian law, where I understand the government insists on mediation in commercial cases (though lawyers have threatened strikes over the issue). Copycat moves are mooted in Germany, Spain and Portugal, where administrations have similar misgivings in the UK over the cost of litigation.
What we now have is a fudge. Cases are automatically referred to a mediator, but there is no mandatory mediation. I’m not totally sure if there’s a difference. The best informed clients will listen to the mediators and make their own minds up. The least informed may take the encouragement and back out early, no matter how strong their case.
If the government truly believed in mediation, this was the chance to make it central plank of our justice system. If mediation is the answer, why leave any remaining questions?
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