The UK government has announced that it is proceeding with plans to introduce compulsory mediation as a mandatory procedural step in all Small Claims in the County Court.  All parties in cases allocated to the Small Claims track (ie most claims valued below £10,000) will be required to attend a free mediation appointment with a court mediator before their case can progress to a hearing.

This is the first stage of a plan to progressively integrate a mandatory mediation step into higher value claims in the County Court: within the fast-track (£10,000-25,000) and multi-track (over £25,000).

The announcements came in the government’s published Response to the consultation process it conducted last year on “Increasing the use of mediation in the civil justice system“.  At the same time, the government announced that it has decided against introducing a centralised statutory regime to regulate the private mediation industry.

Although the new mediation procedure in the Small Claims track is modest in terms of what it demands of parties (a free, short telephone appointment), it is very significant as the first instance of mediation being made compulsory in an entire class of claims in the English courts.  It is a key development in the context of the current policy drive by both the government and the civil judiciary to make ADR an integral element of the civil justice system, including by compulsion to the extent appropriate.

Of particular interest are the government’s announced decisions as to where and how the mandatory mediation procedure will apply within the Small Claims track. The comprehensive scope of its application and the extent of sanctions for non-compliance add weight to the perception that it is intended not as a token ‘encouragement’ of ADR but the first steps in a concerted attempt to embed it fully into the system.

The mandatory mediation procedure

The details announced so far include:

  • It will apply in all defended County Court proceedings allocated to the Small Claims track within the standard CPR Part 7 procedure.  The government considered but decided against any exemptions for particular case types, such as housing conditions disputes and personal injury claims.
  • The government also decided against any exemptions for particular individuals, such as vulnerable parties etc. There will be no scope for a party to apply for an exception in individual cases (although judges considering sanctions for non-compliance will be able to take into account any mitigating circumstances)
  • The procedure will be implemented through amendments to the procedural rules, starting first (within the current Parliamentary term) with liquidated claims – ie claims for a specified amount of money, followed by the remaining types of claim in the Small Claims track.
  • Sanctions for non-compliance:  If a party does not attend a scheduled telephone mediation, the court will have full discretion as to the appropriate sanction – including costs sanctions or strike out of the party’s claim or defence.
  • Parties will be expected to engage in the mediation process in good faith. The government noted some consultation suggestions that mediators be given the power to certify whether parties had engaged adequately in the mediation. However, noting concerns around mediation confidentiality and party confidence in the process,  the government decided that the only requirement will be to attend the scheduled mediation appointment (subject to any further review).

Full implementation details and timings will be announced in the coming months.


Regulation of the mediation sector

While the telephone mediation sessions for Small Claims will be conducted by internal court staff, the government’s plan to extend mandatory mediation to all County Court claims (and potentially other courts) recognises that that will require litigants to be referred to mediators in the private sector.

In last year’s consultation, it addressed the question of whether that gives rise to a need for increased regulation and oversight of the mediation industry with regard to matters such as mediator training and accreditation, standards of conduct, insurance requirements and complaints systems. In particular, it sought views on the extent to which the government should be involved in such matters, through statutory regulation and/or the establishment of an industry regulator.

The recent Response document notes the current voluntary system under which accreditation and ongoing oversight is provided by recognised industry bodies such as the Civil Mediation Council and the Chartered Institute of Arbitrators (CIArb), with whom mediators can choose to register.  It concludes:

 “Given the strength of this existing self-regulation, we have concluded that statutory regulation of the entire civil mediation sector would be disproportionate.”

“We believe the existing self-regulatory system is well placed to enhance its role and work with government to facilitate the introduction of integrated mediation to higher value claims by further promoting standards and consistency in the sector.”
 

Jan O'Neill
Jan O'Neill
Professional Support Lawyer, London
+44 20 7466 2202