Mediation for small claims must not become a tick-box exercise

Plans to introduce compulsory mediation for claims valued up to £10,000 must include a careful assessment of both parties’ engagement with the process to avoid becoming a tick-box exercise, CILEX told the government in its response to a Ministry of Justice (MoJ) consultation.

The MoJ proposed a requirement to attempt mediation for all proceedings allocated to the small claims track in the county court. Continued failure to comply could result in a judge making an adverse costs order or striking out a party’s claim or defence.

In its response, submitted in October, CILEX broadly welcomed the proposal – subject to the court having the power to forego mediation where appropriate – and agreed that suitable sanctions should be applied for non-co-operative parties. It argued, however, that “adequately assessing a party’s involvement in mediation is complex” and that careful, measurable assessments would need to be made to ensure both parties took the process seriously and that it was not open to abuse, with users taking part simply to avoid sanctions.

In addition, CILEX wanted to see parties “made aware of such sanctions from an initial stage” to encourage genuine participation in the process. It highlighted the importance of aiding vulnerable parties with measures, including pre-discussions with a mediator, to ensure they have suitable support and the offer of possible alternatives.

Most CILEX members consulted wanted to see a national standard for mediation amid concerns that “currently anyone can call themselves a mediator”. CILEX said that, whilst there were many good professional mediators available, providers varied a great deal in terms of legal knowledge and capability, a situation that did not provide adequate protections for users.

Whilst CILEX did not want to see any future regulation become “too onerous or rigid for those working in the profession”, it acknowledged the need to instil confidence in the process.

The then head of policy, Jonathan Walker said expansion of mediation had the potential to reduce the volume of civil cases that were taken to court, “while providing the parties involved with a cheaper and faster route to resolution”. He said that we also “need to be confident that vulnerable users have proper support and that providers of mediation services are adequately regulated to ensure a uniformly high-quality service for participants that instils public confidence in the mediation process”.