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Mandatory mediation: The future is here

Posted on November 14th 2022

By Jessica Bowler, Paralegal, Industrial Disease Department

What is mediation?

Mediation is a process whereby parties in dispute over a matter will come together on a voluntary basis, with the aid of a trained mediator, to attempt to resolve the issue between them in a manner that is agreeable to all parties involved. There is no judge deciding on the matter, there is no involvement of the courts, it puts the control of settlement entirely into the hands of the parties themselves and aims to encourage a resolution which is mutually agreeable to all.

However, mediation and other forms of dispute resolution outside of litigation have long been seen as ‘alternative’ forms of resolving legal matters, living in the shadow of litigation itself. Professionals in the field of mediation believe that this is an outdated view of what can be a just as effective and less costly and time-consuming form of resolution in the face of legal disputes. They believe that mediation (along with other forms of alternative dispute resolution) should be seen on equal footing with litigation and that they should no longer be coined as ‘alternative’. Mediation in England and Wales has over an 80% success rate and with new plans produced in 2022, it seems as though the court system in England and Wales are beginning to recognise this and are using it to their own advantage.

The new scheme

The Ministry of Justice (MOJ) have released plans to enforce mandatory mediation for civil disputes which are valued at £10,000 or less. This would take the form of a one-hour telephone session which would be funded by the MOJ, at no cost to the parties. The mandatory element is that this one-hour session will be required prior to being able to issue any legal claim. This is with the aim of ensuring that any matter that can be settled without the court’s intervention, will be settled without the court’s intervention.

Why is this scheme being introduced?

This poses the question: How does this benefit the courts? Logic would dictate that the more disputes that are settled via mediation, the less cases will be issued to the courts and the less revenue they would ultimately make through fees. However, the courts in England and Wales are inundated with claims beyond their capacity. This leads to lengthy wait times between a claim being issued, and a court hearing taking place. Statistics from 2019 showed that the average waiting times for a civil hearing were around 38.1 to 59.4 weeks from the initial issuing of a claim. The backlog of claims that this represents puts enormous pressure on the court system.

The hope is that by making mediation mandatory, simpler matters can be resolved between the parties prior to any claim being issued and only more complex cases will then be issued for the court’s attention. Of course, mediation is not a fix-all solution to civil disputes, sometimes relationships between the parties will have broken down beyond the point of any amicable dealings between the parties themselves. These cases can benefit from a judge looking objectively at the issues and deciding on an outcome. However, this process of mandatory mediation, given the high success rate of mediation as a whole, is a sure-fire way to lessen the pressure on the courts in some capacity once the new scheme takes effect.

Why isn’t mediation already mandatory for all civil litigation?

You might be thinking, if mediation is so successful, why not make it mandatory for all civil litigation instead of targeting claims valued at £10,000 or under? There are plenty of arguments for why this may not work. One of which being that a vital component of mediation’s success is the voluntary nature of it. Those who choose to partake in mediation, prior to the new mandatory scheme, have done so through their own free will. This sponsors a process where those involved are willing and ready to settle their dispute by taking part, because if they were not, they wouldn’t be there.

Another aspect is that there are some claims that raise legal questions that the court have yet to decide upon or that need further clarity of decision. In these cases, it is the primary function of the courts to hear the matter and determine the outcome in order for future claims concerning the same legal issues to have a precedent to be followed. This is more likely to arise in higher value claims where the issues involved can be more complex.

Does mediation require a solicitor?

Solicitors are not a requirement in the mediation process, so where do solicitors fit into this equation? Well, solicitors can be a very helpful guide to parties taking part in mediation to resolve legal matters. They can offer support and guidance when the matter of possible settlement options arises. No matter the success rate of mediation, if parties leave having come to a settlement agreement and then later find out that they could likely have settled with a more favourable outcome if they were to litigate, this fosters the possibility that the parties can leave unhappy with the result.

Having the expertise and advice of a solicitor can support the parties to really think about the settlement being reached and whether this is something that they will be ultimately happy with sticking to when the mediation process comes to an end. Solicitors can also be of help if the mediation does not come to a successful conclusion and civil litigation is then needed. If you are looking into mediation and would like to know how Oliver & Co Solicitors could be of assistance to you, please do get in touch and discuss the options with a member of our team.

When will the scheme come into force?

The courts are yet to enforce this new scheme and exactly when this will be happening is yet to be seen. What is clear for the time being, however, is that mediation is finally being recognised as the useful tool that it has the potential to be in the English and Welsh civil legal system.

Call and speak to a member of our team on 01244 312306