As new measures are introduced for small claims, the MoJ is considering mandatory referral to mediation in higher-value cases

The Ministry of Justice has not ruled out mandatory mediation for higher-value county court claims, a senior official confirmed last week as the MoJ prepares to roll out a new requirement to mediate in low-value money claims this month.

Rachel Rothwell

Rachel Rothwell

Speaking at a Westminster Legal Policy Forum conference on ‘next steps for dispute resolution’, MoJ head of dispute resolution policy Kim Wager pointed to the success of a Canadian mandatory mediation model.

She said: ‘We haven’t ruled out mandatory referral to mediation for higher-value claims in the county courts, so those over £10,000. It seems to work well in Ontario; they have had it in place for over 20 years now. [It covers] all cases that go to the court… including personal injury, as well as money cases. That remains of interest as a potential model to develop a mandatory mediation arrangement in England and Wales.’

Meanwhile, for money claims worth less than £10,000 filed on paper or through traditional online systems on or after 22 May, the MoJ is piloting a requirement for parties to attend a free, one-hour telephone mediation arranged through the small claims mediation service (SCMS) before the claim can then proceed to court if no settlement is reached. This will be extended to all money claims below £10,000 later this year, including those submitted through the Online Civil Money Claims service.

'We concluded that the only way to move the dial on this and drive take-up would be to require it; to make mediation an integrated step in the resolution journey, which includes penalties for non-compliance'

Kim Wager, Ministry of Justice

The number of claims dealt with by the SCMS will grow from 20,000 annually under the current voluntary service to 92,000, with 39 new mediators already recruited.

Wager said: ‘Even [with] the automatic referral to the free small claims mediation service, for which parties had to opt out, take-up rates were still only around 21% of cases. So we concluded that the only way to move the dial on this and drive take-up would be to require it; to make mediation an integrated step in the resolution journey, which includes penalties for non-compliance.

Ontario court

MoJ: pointed to the success of Ontario's mandatory mediation model

‘Some of our consultation responses told us that mediation had to be voluntary, that mandating it would not work. We’re going to monitor this very closely to see if the settlement rate dips below the level of voluntary settlement which currently stands at around 52%. It will be interesting to see if it dips, and by how much and for how long.

‘The impact assessment that we published modelled a 15%-55% settlement rate… and we estimate this would free up between 1,400 and 5,200 sitting days; between 9% and 32% of all county court sitting days. So it would release a significant amount of resources for those cases that do need to go before a judge.’

Wager said the MoJ welcomed the Court of Appeal’s ruling in Churchill v Merthyr Tydfil Council last November that a court can lawfully stay proceedings and order parties to engage in non-court dispute resolution. She said: ‘The senior judiciary has been very encouraging and if this practice is widely embraced across the judiciary, it could prove a better mechanism to ensure the engagement of parties and to drive up the uptake of dispute resolution than a blanket mandated approach.’

The MoJ official pointed approvingly to one judge in Bedfordshire who has established an informal relationship with two mediation providers and the Royal Institution of Chartered Surveyors to facilitate mediation in home improvements disputes, for example between a householder and their kitchen fitter.

She added that Churchill has also ‘spawned’ greater interest from the judiciary in ‘judge-led mediation’, in which parties must attend a judge-led session that sits somewhere between mediation, early neutral evaluation and conciliation. ‘The senior judiciary are very interested in that, we’re aware that it happens in some of the tribunals, particularly in the employment tribunal and property chamber of the first-tier tribunal. We are looking very closely at the success rates and the way that it is conducted because there is a wider applicability of that kind of approach,’ she said.

Law Society head of justice Richard Miller said the Society opposed blanket mandatory mediation in principle but had ‘more sympathy for the concept’ in small claims, as unrepresented litigants may need guidance on how to avoid a full hearing. For represented parties, however, he said: ‘Proceedings are supposed to be a last resort, and that is how most solicitors use them. So directing forms of dispute resolution after the issue of proceedings risks duplicating effort and wasting costs.’


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