Dr Ann Brady considers the government's 'outrageous' decision to shut down a ground-breaking small claims mediation scheme


Despite efforts to save the Exeter Court Small Claims Mediation Scheme, with its local judicial support, its team of local solicitor and barrister mediators, and its excellent track record over the past six years, the Ministry of Justice (MoJ) has forced its closure.



The scheme will be replaced, as in other parts of the country, by a MoJ in-house mediator. Scant regard appears to have been paid to two issues. First, whether it is appropriate for a government department which is responsible for the administration and financial control of the legal system to be using its own employees to handle cases that would normally have been dealt with by judges. Second, whether this attempt at cost-cutting serves the interests of justice, particularly when litigating parties have taken no legal advice before putting their cases into court.



Given the fiscal implications of this policy, it is incumbent on the MoJ to produce accurate and detailed statistics on how many cases its mediators are settling in each area, how much the scheme costs, and the results of questionnaires completed by the public regarding their satisfaction with the scheme. Given that other cases are being diverted to what is known as the 'main' national mediation scheme - the National Mediation Helpline - the MoJ should also produce precise statistics that set out, area by area: how many cases are being diverted to this helpline; which alternative dispute resolution (ADR) organisations are handling the cases; the success rate in terms of settlements; parties' satisfaction; and the cost of running this scheme.



The genesis of the Exeter scheme is worth recalling. Jeremy Ferguson, then president of the Devon and Exeter Law Society, started the scheme on a pro bono basis because the ADR organisations (comprised mainly of commercial organisations), which were anxious to start a mediation scheme at Exeter Court, were not prepared to undertake small claims mediations because it was not profitable. They also alleged that mediations could not be accomplished within a relatively narrow timeframe and criticised the procedural documentation.



Despite this, the scheme prospered and was completely independent of the main national scheme. Mediators were paid, the scheme was expanded to courts in Barnstaple and Torquay and, as the scheme developed, it took on board criticism and kept an eye to the future. Over the years, the team built considerable expertise in handling parties who had taken no legal advice before putting their claims into court, as well as dealing with the fast- and multi-track cases which came its way.



In an ideal world, free or inexpensive local out-of-court small claims mediation services, in which the public could place their trust, would be available nationally. In contrast, solicitors are using mediation as a pre-court procedure at fast- and multi-track cases with parties having all the benefits of advice and advocacy. It is folly to axe an efficient, long-standing, tried-and-tested scheme when the MoJ will not produce precise figures for its own alternative schemes' performance.



This is especially outrageous when the new amalgamated Devon and Somerset Law Society is capable of providing a court mediation service to a large number of courts on the Western Circuit. Indeed, it could handle not only small claims but fast- and multi-track cases too. Perhaps MoJ in-house mediators are casting their eyes on these case levels as well. I hope that the MoJ sees the implementation of a national court mediation service as a continuing development and is aware that, across the country, there are many experienced mediators who would be prepared to offer their independent mediation services to local courts on a rota basis, and local law societies who would be prepared to organise such schemes.



Dr Ann Brady is a barrister and mediator at Rougemont Chambers in Exeter