Mediation in 2023
Jane Fender- Allison, of Counsel and Mediator at CMS provides an update on the Ministry of Justice’s proposals for mandatory mediation in the small claims courts in England and Wales.
As reported in Young Mediators’ November 2022 blog (Radical change as the Ministry of Justice considers proposals for mandatory mediation), there are currently proposals for “mandatory mediation” in the small claims courts of England and Wales under a consultation from the Ministry of Justice. There have been mixed responses to the idea and the results of the consultation are keenly awaited.
How did we get here? Anyone who thinks this move has come out of the blue, perhaps hasn’t been paying attention. Over the last few years mediation has been a key part of a larger drive which will see more ADR within the courts of England and Wales. For example in 2021 / 2022 alone:
· March 2021 - Sir Geoffrey Vos (Master of the Rolls and Head of Civil Justice in England and Wales) gave a speech about the relationship between formal and informal justice, which set out the ambitious aim of the ultimate integration of ADR into the civil justice system in England and Wales;
· June 2021 - the Civil Justice Council published a key report on “Compulsory ADR”, saying that compulsory ADR in a civil court action is in principle lawful and compatible with Article 6 of the European Human Rights Convention, plus it had the potential to bring about a beneficial change in the culture of dispute resolution;
· August 2021 - a Call for Evidence on dispute resolution was issued by the Ministry of Justice looking at dispute resolution outwith courts; saying there was a need for so called alternative dispute resolution to be mainstreamed within the legal system culture. Although responses indicated a range of views as to compulsory ADR, many supported greater compulsion;
· November 2021 - the Civil Justice Council published an interim report on Pre-Action Protocols and consulted on a range of potential reforms including a mandatory good faith obligation to try to resolve or narrow a dispute, compliance with which could be by without prejudice discussions, formal settlement offers or ADR;
· February 2022 - the Ministry of Justice consulted the UK ratifying the Singapore Convention on Mediation AKA the Singapore Convention, which was adopted by the UN in 2018 and came into force in 2020. The Singapore Convention has been a major step up for mediation on the international front, providing a harmonised framework for enforcing international mediation settlement agreements, without the need for full court proceedings. The results of this consultation are pending.
Then in July 2022 the Ministry of Justice ran the consultation mentioned above, around increasing the use of mediation in the civil justice system, including introducing mandatory mediation in small claims court actions i.e. up to £10,000. This is proposed to involve an automatic referral of cases to a no-cost mediation session by telephone. It also sought views on the government’s role in the accreditation / regulation of civil mediators in the context of a potential automatic referral to mediation beyond small claims cases. The consultation closed in October 2022 and the next steps are awaited.
So as can be seen, there has been a concentrated push to increase the use of ADR and to integrate it into the civil justice system to a much greater extent, even to the point where it will be no longer seen as “alternative”; and mediation will form a major part of that.
All of this comes as mediation continues its journey to becoming mainstream, whilst being well used in commercial and civil disputes in the UK. The last audit figures (2021) from the Centre for Effective Dispute Resolution showed a steep increase in online mediation, c.£4.6 billion of savings in one year arising from the quicker and more effective resolution of commercial disputes and a near 40% increase in disputes mediated annually since its last audit (2018). The next CEDR audit is due out soon and the figures are expected to be buoyant once again.
Jane Fender-Allison, Of Counsel and Mediator, CMS
23 January 2023