Mediation and county court reforms

Three in four claims allocated to the fast and multi-tracks settle between allocation and trial. Parties could soon be forced to consider mediation far earlier if proposals to reform the county courts go ahead.

Alongside the Jackson reforms to civil litigation costs, the Government has begun a consultation to reform county court administration. A key aim is to encourage earlier settlements through mediation and therefore reduce the number of cases that go to court unnecessarily. This vision for a new civil justice system is one where more parties “collaborate rather than litigate”.  

Four-stage process

One proposal is for the introduction of mandatory pre-action directions for money claims under £100,000 before they reach court. This could involve the following four-stage process with fixed costs at each stage:

  1. A triage of the initial options for resolving the dispute.
  2. Evidence gathering.
  3. Negotiation/settlement.
  4. Trial.

At the settlement stage, the parties would be required to try settling the claim via mediation or another dispute resolution process, such as conciliation or arbitration.

If the claim cannot be resolved at the settlement stage, the parties would enter the trial stage at which they would produce joint evidence packs. These packs would include not only the evidence the parties wish the court to consider, but also details of the efforts made to settle the dispute.

Small claims cases

The four stage process described above is a longer term proposal. An interim proposal is for the introduction of automatic referrals to mediation in small claims as part of the current court process. Parties would be required to attempt mediation before the claim can be considered for a hearing.

A potential model for the mediation stage is the telephone mediation service, similar to that offered by the current small claims mediation service. The mediator would “shuttle” between the parties, phoning one party and then the other until agreement is reached. Under the current mediation service, approximately 98 per cent of all mediations are conducted on the telephone. In the past two years, there have been 10,000 mediations each year with a settlement rate of 73 per cent. The current in-house service could even end up working alongside private sector and non-profit organisations.

There would be a fee for using the service. However, it is envisaged that in the majority of cases the fee will be more than offset by savings that parties make from earlier settlement and the costs associated with a small claims hearing.

Fast and multi-track claims

A further shorter term proposal is for the introduction of compulsory mediation information/assessment sessions for fast and multi-track county court cases worth up to £100,000.

The sessions would be held at the allocation stage and replace the current process which allows parties to request a stay for settlement. The Government hopes that many of these information sessions would be converted into actual mediation appointments.

There may be a fee for the information session. However, as with the proposed mediation stage in small claims cases, it is envisaged that the cost would be more than offset by savings that parties make from earlier settlement.

Consultation

The consultation closes on 30 June 2011. For details, see www.justice.gov.uk/consultations/solving-disputes-county-court