A surprised HM Courts & Tribunals Service has commissioned research into why people are choosing to opt out of mediation for small claims of up to £500.

Since September 2019, HMCTS has been running a pilot where parties receive an automatic appointment for mediation and must opt out if they do not wish to go down that route.

Discussing the pilot at an annual public user event on Tuesday, HMCTS manager Kirsty Swann said a similar number of parties were opting out than in another process where parties opt in. Settlement was reached in 67.5% of cases in the pilot that went to mediation. 

However, HMCTS’s customer insight team has been asked to look into why people are turning down the offer. Swann said: ‘We would have assumed if you have to physically opt out more cases would go to mediation.’

Asked by attendees at the event why parties were choosing to opt out, Swann said: ‘One of the things parties have given as to why they are opting out or not opting in, is at that early stage they are quite suspicious of the other party, about their reasons for coming to mediation.’

Timing was also an issue. ‘Parties, when they issue proceedings, at that point they are quite entrenched in their reasons for pursuing a claim or defending a claim. It’s something we’re looking into… When parties get closer and closer to the final hearing, a lot of cases then settle out of court. [We want] to make sure we can get as many cases as we can through mediation before they get through the court hearing door,’ Swann said.

She added that many parking cases were settled at mediation and are often about financial circumstances and making payment arrangements. Covid-related travel cases and PPI claims were also going to mediation.

HMCTS is also conducting a civil recovery pilot at Manchester Civil Justice Centre where cases stayed during Covid-19 closures are given another opportunity for mediation before a final hearing is listed. In the first stage of the pilot, mediation was requested in nearly 10% of 640 cases. In the second stage, HMCTS is testing a slightly different process, where a final hearing is fixed but the case is referred to mediation if parties consent.