Increase in Mediation Predicted for 2015
11 March 2015 by Chris Yemm
For many years both Labour and Conservative governments have favoured the idea of litigants resolving their differences through mediation rather than the Court process. Various amendments to the Civil Procedure Rules have enabled Judges up and down the country to refer cases to mediation and/or stay Court proceedings while this happens.
The uptake has however been slow. Dozens of solicitors, barristers and other professionals have obtained mediation qualifications only to find that there is insufficient work available on which to hone their skills.
However, recent steps taken by the Government look likely to drastically change the face of civil litigation in the coming months.
First, the savage cutbacks in public funding have not only led to increased pressure on Judge time because of litigants representing themselves, but also a real need for potential litigants to find alternative methods of resolving their differences.
Secondly, it has become increasingly common for Judges to impose compulsory mediation on parties with cost sanctions for failure to comply.
Thirdly the Court system, itself creaking at the seams, no longer provides an accessible means of resolving disputes. Over the past few months in my own Court at Colchester for example, “Directions” appointments which, in the old days, used to be either issued automatically or agreed, are normally being listed for a date some 6 months ahead. By the time Court proceedings are finally issued the parties have usually already made various attempts to resolve their differences in correspondence because, apart from anything else, if they didn’t, they could face criticism at a later date for the issue of premature proceedings.”. It is therefore a ridiculous state of affairs for those proceedings then to be on hold effectively for a further 6 months before the Court can find the necessary time to fix a timetable for the case.
The principal reason for this delay is the fact that the new compulsory Multi Track Costs Budgeting hearings require not less than an hour of Court time on top of the normal 30 minute “Directions” appointment. Given that most Multi Track cases are now therefore being listed for 1 ½ hours it is not difficult to see why cases are taking so long to be properly considered by a Judge. That however is no consolation to the ordinary business man or trader who is kept out of his or her money and who alone suffers the “knock on” effect of delayed justice.
A fifth factor impinging on a potential litigant’s access to the Court system is the huge increase in Court fees (as opposed to solicitors’ costs) being imposed as part of the Government’s plan to make the Courts pay for themselves.
Some Court fees are due to increase by a staggering 600% with effect from April of this year.
Since disputes deemed by the Court to be “small claims”, that is having a value of less than £10,000, are dealt with without the benefit of legal cost recovery and are therefore already taking longer because of parties having to represent themselves.
It is clear that a combination of all of these factors is going to lead, at last, to a big increase in the uptake for mediation as an alternative to a Civil Court system that is no longer fit for purpose and makes a mockery of the much vaunted lip service paid to “access to justice”.
For further information contact Chris Yemm who is the Civil Litigation partner at Fisher Jones Greenwood LLP, a former Deputy District Judge and a CEDR accredited mediator.