Small Claims? Push them to Mediation says new CJC report
In its recently published report on the resolution of small claims, The Civil Justice Council (CJC) recommend that small claims of less than £500 (apart from actions involving personal injury and housing disrepair), should follow a new pre-action protocol which will highlight the need for mediation or alternative dispute resolution (ADR) rather than use valuable court time.
This approach will seek to find a more proportionate process, capable of being handled by litigants in person. The report also suggests that any defendant’s refusal to engage in mediation will be deemed unreasonable behaviour.
The report went on to recommend a full review of the adequacy of HM Courts & Tribunals Service (HMCTS) in the provision of guidance for potential litigants, which ought to include videos to guide them through the dispute resolution process.
The recommendation for the new small claims pre-action protocol would set out clearly the required procedure and highlight the need to consider pre-issue mediation/alternative dispute resolution. Parties to a small claim should also be asked to acknowledge and confirm (by ticking a box in hard copy or digital page) that they have read the pre-action protocol.
The newly published CJC report builds on its earlier working party comments from 2021, where it recommended that HMCTS should set a target that no case in which the parties opt-into mediation should reach a court without a mediation appointment being offered.
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A mediation appointment should now be offered in all suitable claims.
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Parties to small value litigation should be ‘clearly informed’ that mediation is compulsory in defended cases.
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HMCTS should provide more instruction and videos to guide potential litigants through the dispute resolution and mediation/ADR process.
What are the benefits of small claims mediation?
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Less cost, due to an out-of-court resolution.
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Fewer small claims causing delays at HMCTS.
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More time can be devoted to the claim.
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Claimants can learn and appreciate more about the mediation/ADR process - a clear alternative for future disputes.
The reports goes on to add that, if compulsion is to work, some effective sanction must be available for those refusing to co-operate.
What is the impact?
The Chairman of the small claims working party The Honourable Mr Justice Cotter QC, said:
‘As the large majority of claims issued in the civil courts involve sums less than £10,000 the approach taken to the management and resolution of small claims is of critical importance.
‘We believe that the recommendations in this report could reform the litigation experience for litigants in person with modest financial claims, who are by far the largest group of court users, maintain public confidence in the civil justice system and allow limited judicial and administrative resources to be properly focused.’
Madhvi Panchal, Solicitor, Dispute Resolution
Lawson West Solicitors, Leicester
“I witness many claimants who only want to go to court. They’re resolute and want to make their point and drive it home through the legal system. They won’t back down and they won’t negotiate. Sadly, it is often small claims that take up a disproportionate amount of court time, leading to delays in HMCTS hearing larger disputes.
I personally believe that it will be good practice for those bringing or defending small claims to understand and learn more about mediation. It is a straightforward and proven process that often leaves each party with an agreeable outcome, whereas a claim progressed through the court system only sees a ‘winner’ and a ‘loser’, with excessive and disproportionate court costs and fees being incurred. I know which way I’d propose – mediation.”
- Read the Full Report "Resolution of Small Claims" here, published by the Civil Justice Council [Jan 2022]
- Do you know the difference between Mediation and Arbitration? - our helpful guide
- New Clarity of Fixed Costs Rules - How much will your court case cost you?
If you have a small claim or dispute, there are various ways to approach negotiations. Contact Us here and we can provide sensible and pro active advice to help resolve your dispute in the best way possible.
