Making mediation compulsory for claims under £10,000 will increase by sevenfold the workload of HM Courts & Tribunals Service’s small claims mediation service, a senior civil servant has said.
Sarah Rose, deputy director of dispute resolution at the Ministry of Justice, told a Westminster Legal Policy Forum conference that an integrated system of compulsory dispute resolution was ‘at the forefront of our minds’.
Rose stressed that compulsory mediation was not about restricting parties’ rights to access the court or a judicial determination but more about ‘transforming a system predicated on adversarial conduct to one that promotes dialogue and compromise’.
Claims valued under £10,000 referred for an hour of free telephone mediation with HMCTS’s small claims mediation service would become a ‘standard part of core procedure’, the conference heard.
Significant investment would be required to expand and enhance the small claims mediation service. Compulsory mediation would increase the service’s workload by 700%, Rose said. Thousands of people ‘who would not previously have tried to use mediation would be supported to do so at no additional cost to themselves’.
Meanwhile, a Court of Appeal judge called for a change in attitude towards mediation from the judiciary and legal profession. Lady Justice Asplin DBE told the conference that the justice system was ‘in the midst of a sea change’ but that elements of the sector were still in a ‘transition phase’.
Asplin, chair of the judicial ADR liaison committee, agreed with other speakers that the use of expressions such as mandatory and compulsory mediation could be ‘trigger words’ stopping people from accepting that alternative dispute resolution is a legitimate process.
‘We have moved a long way from the attitude that the only real way to settle a dispute is in an adversarial trial,’ she said. ‘There are other techniques that judges can use.’
But she made the point that in the year to 30 September 2022, only 17,000 out of 247,000 civil cases were settled through mediation.
‘There is a long way to go if mediation is to become maintstream… we have to consolidate the changes which have already taken place and encourage judges to think creatively. In many countries including Canada, Australia and Singapore a seamless approach is the norm and in some cases not just for smaller claims.’
MoJ proposals for mandatory mediation need to be accompanied by more investment in training mediators and getting the profession to back the changes, she said. ‘Education and acceptance [of mediation] is absolutely key to make the system work and maintain confidence. It can only be successful if the public, profession and judiciary embrace that change.’
Asplin predicted that changes in approach would be felt not only in low-value claims but in bigger claims as well. We have to take positive steps to achieve that and not to create a two-tier system.’
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