Mediation and the Civil Justice System
The Government’s response to the consultation on increasing the use of mediation in the civil justice system was published on 26th July 2023. This eagerly anticipated response sets out robust measures for the integration of civil mediation within the existing legal frameworks.
At Crowther Mediation we practise both Family Mediation and Civil Mediation. It has long been the source of some frustration, that family mediation is more readily accepted as an alternative means of dispute resolution. It is essential to attend an assessment meeting with a mediator before being allowed to make an application to court. Civil mediators have wanted something similar for civil mediation for some time.
What has the Government proposed?
Under the new proposals the government intend to continue using the HMCTS Small Claims Mediation Service for small claims valued at less than £10,000, under part 7 Civil Procedure Rules. Mediation sessions will take place free of charge, over the telephone for one hour and are seen as a compulsory element of the process. There is an opportunity to extend the mediation time, where progress is being made.
This essentially means all cases made under part7 CPR will be expected to do a minimum of 1 hour of mediation.
Unlike the rules for family mediation, there are no exemptions for attendance at mediation under part 7 claims. Failure to attend a mediation session will result in the case being passed onto a judge where sanctions for non attendance can be made against those who did not attend, e.g. the judge may strike the claim out, rule against the non attendee or make a costs sanction against the non attendee.
Family mediation has proven that ‘compulsory’ mediation will not work without effective sanctions. Since the compulsory MIAM was first introduced in 2014 it hasn’t been seen to be supported by judiciary and the court service. Many applications are made without An assessment meeting having taken place and very rarely (if at all ) are sanctions imposed on those who do not consider mediation before applying to court. Year on year the statistics improve, but it’s been nearly ten years – to say it has taken some time for this rule to ‘bed in’ is an understatement. As mediators, we can only hope these new civil rules are supported by the judiciary and this will be evidenced in the sanctions imposed for non attendance.
HMCTS Small Claims Expansion
In order to implement the smooth running of the new rules, the government plans to expand the existing HMCTS Small Claims Mediation Service. The government seem to recognise the importance of investing in alternative forms of dispute resolution, and the need to ‘underscore our leading role in international commercial dispute resolution’. However, there aren’t many international commercial claims valued at less than £10,000!
Going forward the government intends to develop further rules for the integration of mediation within the resolution of higher value claims in the fast track system valued £10,000-£25,000 and the multi track system valued at £25,000. It is envisaged these cases will be mediated by external mediators as opposed to the HMCTS Small Claims Mediation Service.
The government’s response to the consultation goes as far as suggesting there is a ‘sufficient’ self regulatory standard within the civil mediation industry to ensure the external mediators in fast track and multi track cases will be of a sufficient standard to effectively carry out the work. Whilst civil mediators are expected to be a member of an organisation such as Civil Mediation Council, which has standards frameworks to be adhered to and ensures all members have a complaints procedure and insurance policy in place, it doesn’t really go beyond this.
What sets Family Mediators apart?
Family mediators are far more regulated, with annual supervision sessions taking place four times per year to ensure standards are maintained and a re-accreditation process which takes place every three years. Is it sufficient for civil mediators to simply confirm once per year they are complying with standards? How do we know standards are being maintained and adhered to, without any independent supervision and guidance? It is my firm belief, there is insufficient supervision within the self regulatory standard to actually make it effective. Whilst we welcome the possibility of external mediators being used to resolve disputes on a ‘compulsory’ basis. We feel it is important for mediators to set themselves apart, as maintaining the highest industry standards, by entering into voluntary independent supervision.
For more information on becoming an independent supervisor or finding an independent supervisor in your area, please contact Crowther Mediation now.
