SUMMIT: range of measures considered to promote alternative to court in multi-track cases


Proposals to encourage litigants to settle claims early by using mediation, including requiring parties to attempt mediation before being allowed to serve court papers, were considered at a special mediation 'summit' last week to which the Gazette had exclusive access.



The group of senior members of the judiciary, government bodies and legal profession was asked to consider a range of measures, including reform of the Civil Procedure Rules, to promote mediation as an alternative to lengthy and often costly court battles in multi-track cases.



The government is keen to encourage the use of mediation because it believes consumers prefer it to going to court.



Participants at the meeting in Surrey, organised by the Ministry of Justice, Civil Justice Council and Civil Mediation Council under Chatham House rules, were told that the results of a 2004 automatic mediation referral pilot scheme in London indicated that 80% of cases opted out of mediation. The proportion of cases where both parties opted out was much higher among personal injury cases.



Of 689 cases automatically referred, only 53 mediations took place, with a success rate of 66%. The pilot concluded that, in most cases, it appeared lawyers were advising clients against using mediation.



Noting the negative financial implications of early settlement for lawyers operating on a conditional fee basis, attendees considered financial incentives, and possible sanctions, to encourage both defendant and claimant lawyers to settle early.



Proposals included allowing clients and solicitors to broker agreements that would reward the lawyer with an enhanced fee if the case was successfully settled early, introducing staged fees weighted to promote early mediation, and paying a reduced success fee if the lawyer was subsequently found to have declined mediation unreasonably.



However, attendees stepped back from recommending any measures that would make mediation compulsory at any stage. Instead, they invited the organising bodies to take forward three proposals.



First, defendants should be able to make a mediation offer rather than file a defence. Second, a mediation code - similar to the rehabilitation code - should be produced and third, the government and professional bodies should encourage mediation education in schools and introduce a mediation module within formal legal training courses for both barristers and solicitors.



However, while noting the government's commitment to promote mediation because of its popularity with the public, participants emphasised that mediation is not suitable, or even cost-effective, for all cases.



Anita Rice