There is a striking anomaly caused by the omission of a mediator’s fee from the list of recoverable disbursements in Civil Procedure Rule 45.10 (fixed-costs cases). It means that a receiving party must bear the costs of the mediator’s fee, which creates a disincentive for mediating.
In the small-claims track, cases are referred to the (currently) free-to-use small-claims mediation service. In non-fixed-costs fast-track and in multi-track cases the mediator’s fee can be recovered as a disbursement from the paying party.
The result is that mediation is effectively not available for a considerable proportion of cases.
The rule would increase the cost of settlement to the paying party by the amount of the mediator’s fee in those cases they agree to mediate. I consider the cost would be offset by savings made by early settlement and the certainty that brings.
Philip Hesketh, director and mediator, Trust Mediation Ltd, London WC2