The apparent similarity (in my own mind, at least) between the Courts and Tribunals Service and a lunatic asylum never ceases to amaze me. The latest example is in relation to ‘small-claims mediation’.

My understanding of the new (and in my view, necessary) rules was that the parties to an action should always attempt to settle claims via alternative dispute resolution (ADR), rather than spending time and money pursuing cases to a full contested hearing.

This is, of course, admirable. However, I cannot recall reading anywhere that ADR should be used as a tool to force a defendant to accept settlement terms which are unreasonable, simply to save court time and money. In a recent case my firm acted for a defendant who had an absolute defence to a claim. It was not possible to settle with the claimants (who were acting in person) before the hearing. At the hearing, the district judge insisted that the matter be mediated, and that our client should simply pay 50% of the claim to dispose of this (which, understandably, our client was not minded to do). Upon such refusal, the judge threatened to impose a costs order against our client on the basis of a failure to mediate.

Is ADR then really just a process whereby a district judge can take an initial look at a case, bring out the ‘mediation magic wand’, wave it about a bit, and suggest that the claim is settled on the basis of a payment amounting to 50% of the total claimed? Does it tick the all-important box on the ‘DJ Instruction Manual Checklist’ about alternative dispute resolution? How is this justifiable?

If this is the future approach of HMCTS, we will simply have to suggest to our clients that, whenever a claim is made against them, they pay out half the claim to dispose of it. I fear it is very much a case of the lunatics running the asylum.

Edward R Foster, senior partner, Fosters Law, Herne Bay