The Future Direction of Mediation

September 15, 2023
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All defended (Part 7) Small Claims in the County Court (those below £10,000) will soon be required to attend a free mediation appointment with a court mediator before a case can progress to a hearing. This is likely to be expanded into Fast Track (£10,000 to £25,000) and Multi Track (over £25,000) in due course, depending presumably on the experience gained in the first phase. The latter would be referred to external mediators.

The procedure will not be onerous. A free, one hour telephone appointment is all that will be required, but there will be no exemptions for particular types of case, for example personal injury, or even for vulnerable parties.

Property litigators will wish to note that the requirement to mediate will not apply to possession claims under Part 55.

Settlement at the mediation will remain voluntary. The Government has rejected the suggestion that mediators should assess whether parties have engaged adequately in the mediation process. The only requirement will be to attend the mediation (although this may be reviewed in the future). Possible sanctions for non-attendance are strike outs and costs sanctions, in line with other failures to comply with Court rules,

The Government seems to be taking seriously its policy of incorporating ADR into the litigation process. There are other examples. Employment Tribunals are now able to require the parties to take part in an ADR process. In this instance, Early Neutral Evaluation rather than mediation.

All this is happening at a time when the Court of Appeal will soon decide whether or not Halsey needs to be revisited. John de Waal KC dealt with the prospects for this case in a recent blog on behalf The Property Mediators, which can be read here.

The Government also appears to be willing to take a “hands off” attitude towards the mediation industry. It seems to be content to allow matters such as training, accreditation, conduct, insurance and complaints to be left to organisations such as the Civil Mediation Council, and has concluded that statutory regulation of the entire mediation sector would be disproportionate.


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