Mandatory mediation becoming the norm?
Mandatory mediation is creeping into the justice system. Mediation has generally been a voluntary process, but the government is actively looking to integrate mediation across the civil justice system. The aim is to help resolve disputes swiftly and effectively without the need for a court hearing.
As courts struggle with a backlog of cases, this shift to more compulsory mediation is perhaps unsurprising.
Mandatory mediation in Small Claims cases
From May 2024, mandatory mediation was introduced for Small Claims in the County Court. Compulsory mediation is now a procedural step for Small Claims of up to £10,000. Before a matter can progress to a hearing in court, the parties must attend a mandatory telephone appointment with a court appointed mediator.
The government intends to extend mandatory mediation to higher value claims in the future. Firstly, to Fast Track cases (£10-25k) and ultimately to Multi-Track cases (over £25k).
Family Court matters
Before a case can go to court there is a legal requirement (in most cases) for separating couples to have attended a Mediation Information and Assessment Meeting (MIAM). This explains the benefits of mediation and discusses options.
The government shelved its intended plans for mandatory mediation for separating couples. Instead, the focus will be on providing early legal advice. For parents it aims to help support the needs of children, and also intends to support domestic abuse victims. Couples can choose the right support for them, whether mediation, alternative dispute resolution (ADR) or litigation.
There remains a clear intention to use mediation or alternative dispute resolution before any case can go to court.
Benefits of mediation
Mediation can be extremely beneficial. The components of good mediation include:
- A safe environment for both parties
- Open and honest conversation; looking for solutions rather than an adversarial approach
- Confidentiality – information will not be shared without your permission (unless there’s a safeguarding risk for example)
- Independent and impartial mediator – facilitating communication between parties
- Offers more flexibility than a rigid court structure
- Parties reach a decision/solution that is made by themselves and not imposed by others
- Cost effectiveness – it can be quicker and cheaper than going to court
- Steps can be taken to ensure any agreement is legally binding
Of course, for all this to be successful there needs to be a sufficient number of available, properly trained mediators.
The Law Society is also continuing its campaign for the reintroduction of legal aid funding for early legal advice.
The impact of introducing mandatory mediation in Small Claims civil cases remains to be seen. And the debate over whether mediation should become mandatory will continue.