small claims mediation service by J.Tagg
4(a) Description of the scheme
The small claims mediation service provides free mediation to parties wishing to settle
disputes out of court. Each case is assessed on the facts and the mediator encourages openminded discussions with the disputing parties to arrive at a range of possible settlement outcomes, which are not exclusively financial.
Cases are either referred to the mediation service by the judiciary or the parties themselves opt for the service simply by ticking the appropriate box on the court form.
Though mediation is encouraged and supported by the Civil Procedure Rules, this is an
entirely voluntary service. Parties interested in trying mediation will contact the mediator
so that a mutually agreeable time can be arranged. The mediation itself can be arranged as a traditional face-to-face appointment, or as a telephone appointment.
Although there is no restriction on the time made available, the mediations generally last
about an hour. In that time, around 68% of cases have settled. If the case settles at the
mediation, the case is de-listed (taken out of the court system).
Although the service only began in April 2007, the mediators have been able to build up
significant expertise in mediation and settlement options as part of their professional
development. Over the past 12 months, the mediators have conducted in excess of 4,000
mediations.
The service provides an efficient service because the mediators work closely with Court
Managers, Judges, Area and Regional Directors and other local stakeholders. The mediation service has been recognised as one of the Lord Chancellor's "breakthrough commitments" for Her Majesty’s Courts Service (HMCS).
The service has grown significantly in a very short time. It began at Manchester County
Court, as one of three pilots that were tested during 2005/06. That pilot had such high
settlement and satisfaction rates, that nine similar mediators were appointed in April 2007, and a further eight in October 2007. From May 2008, each geographical area of Her
Majesty's Court Service will be served by one of 22 small claims mediators, providing a free service to all courts users anywhere in England and Wales.
4(b) Description of the effects of the scheme
Unlike higher value claims, where parties are generally legally represented, the vast
majority of parties with small claims (those valued less than £5,000) are unrepresented.
Consequently, many more of these cases tend to go on to a hearing before a judge. As a
result, small claims hearings represented some 72% of all hearings in the county courts of ngland and Wales in 2006 (46,836 out of 64,520).
Since it can cost as little as £25 to issue a small claim in the courts, it is unrealistic to expect small claims users to pay for mediation. Nevertheless, there is evidence that many of the disputes falling into the small claims track could be settled prior to the hearing. This would be a good result for the parties, but also for HMCS as the cost of processing defended small claims cases is not fully recovered through fees.
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The Small Claims Mediation Service was therefore set up as a free service to court users, providing the opportunity to settle disputes at an early stage. This makes good sense for users, and also frees up judicial time, enabling the judiciary to concentrate on those cases that require the specialist knowledge and expertise of a judge. Over the past 12 months,small claims mediation has freed up an estimated 3,000 hours of judicial time.
Mediation is a speedier process than a full court hearing. Taking a small claim to a full court hearing takes several months, while most mediations can be arranged and concluded in a few weeks. Mediation provides an opportunity for parties to discuss their issues in a less formal environment, to resolve differences and agree to a settlement.
Settlements reached through mediation can be more flexible than those available to a judge.
There have been a number of innovative settlements, including donations to charity,
apologies, a courtesy car during repair work, and re-activation of business contracts.
Although all court users with a small claims matter will have to pay an initial court fee, using the mediation service comes at no further cost and if unsuccessful users can still have their dispute heard by a court.
The quality and compliance of settlement outcomes is also higher because the parties shape the terms of the settlement agreement. So, unlike a court hearing, where 12-13% of cases require some form of follow-up enforcement action, the settlements reached following a small claims mediation are complied with in 99% of cases.
Initially the expectation was that small claims mediation would only be supplied as a face-toface service. However, telephone mediation began to be introduced where one of the parties lived at a distance from the court. It soon became clear that parties preferred settling their disputes by phone. Now almost 97% of mediations are by phone, enabling parties to resolve their disputes without having to travel to court, saving time and expense. It is particularly useful in areas that are inaccessible or poorly served by public transport, and has also been helpful to those who are elderly, have a disability or have caring responsibilities.
To date more than 1000 customers have given their views about the service to an online
customer satisfaction survey. This shows that 98% are satisfied or very satisfied with the professionalism and helpfulness of the mediators, with 94% saying that they would use the service again - even 85% of participants, whose cases did not settle at mediation, said the y would use the service again. Users have also commented that the service is quicker, cheaper and less stressful than the normal court process.
4(c) Any possible future additions which might improve the results of the scheme
Over the past year we have continually adapted the service to ensure that it meets the needs of users, and improves the service offered.
One aspect of the scheme that had initially concerned members of the judiciary was that if cases did not settle at a face-to-face mediation, the parties would have to attend court twice - one for the mediation and again for the court hearing. However, the increased use of 5 telephone mediation has effectively resolved this potential problem. Now, parties need not attend court at all if their case settles by telephone mediation - as the vast majority do.
The reliance on one in-court mediator per Court Area initially meant a discontinuity of service if the mediator took sick leave unexpectedly. However, we have been able to
respond to that as the pool of mediators has grown, so that cover can be provided by
mediators in adjoining geographical areas, and even by mediators further afield,
conducting telephone mediations.
We have also been able to increase the effectiveness of the mediators by providing them with dedicated administrative support. As demand for the service has grown, the support officers have been able to make the initial introductions and arrangements with customers, leaving the mediators more time to concentrate on the actual mediations, and thereby increase their capacity.
We have also recognised that the mediators need professional support. We have therefore appointed one of the mediators as a lead mediator, responsible for the continuing professional development of the mediators, enabling them to build on their experience with additional knowledge. This has ranged from regular get-togethers to discuss difficult cases, to mediation conferences and seminars to keep them up-to-date with mediation practises to improve accountability and overall service delivery.
Feedback questionnaires and forms are a useful way to evaluate how the service is running and how it can be improved. We have used both an online customer service feedback questionnaire as well as a hard copy questionnaire for those who do not have access to a personal computer.
4(d) Any documents, press articles, evidence from members of the public relating to the scheme
Extracts from the Customer Survey
How satisfied or dissatisfied were you with the following aspects of your contact
with the Small Claims Mediation Service?
Satisfied/
Very
satisfied
Neither
satisfied nor
dissatisfied
Dissatisfied/
very dissatisfied
Written information received about the
service
94.4% 4.3% 1.3%
How easy was it to get in touch with the
service
91.6% 6.4% 2.1%
Explanation of how the service could help
me out
96.3% 3.3% 0.5%
Helpfulness of the mediator 98.0% 1.1% 0.9%
answered question 1074
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How satisfied were you with the following aspects
of the mediation?
Satisfied/
Very
satisfied
Neither
satisfied
nor
dissatisfied
Dissatisfied/ very
dissatisfied
Your opportunity to participate and
express your views
96.4% 3.5% 0.1%
The time allowed for the mediation 94.4% 5.4% 0.2%
The professionalism of the mediator 98.2% 1.5% 0.4%
Facilities for the mediation(face to face
mediations only)
82.1% 17.9% 0.0%
answered question 1071
Would you be prepared to use the mediation service again?
Answer Options Response
Percent
Yes 94.0%
No 1.4%
Don't know 4.6%
answered question 1065
Qualitative Feedback to the online survey
I was dealing with my wife’s illness and under stress owing to financial and family
business. The help from the mediator and his staff was invaluable. Being 88 years of age
the advice was appreciated and will be a need with other people with problems at the
court. I am disabled and have problems walking - it helped to discuss the case on the
‘phone.
Initially very sceptical due to the intractable stance of the other side. It proceeded well
via telephone conversations and quickly resolved to my satisfaction.
An excellent opportunity to sort out problems before going into court. I would happily
have paid a percentage to the mediator.
I would recommend this procedure to anyone who finds themselves in a similar
circumstance. The courtesy and understanding I received was refreshing to say the
least.
As I am 68 years old, it would have been difficult for me to travel from London to
Manchester. The settlement was accepted. Very easy to get in touch with the service, the
mediator was extremely helpful & pleasant.
Really good service, very fair and impartial. I hope I never have to use it again, but
would recommend it to anyone. I had been trying to sort out my case for 12 months. It
was all done in less than one hour to both parties' satisfaction.
I find the service very effective. It allows the claimant an opportunity to see what their
claim will sound like before a Judge. It is very good at exposing weaknesses in their
claim and encouraging settlement - rather than wasting the Court's time with a full trial
hearing.
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Extracts from received in letters from users of the service
I would just like to thank you for all your help and let you know how much I appreciate
the work you have done for me. The whole process was dignified and fair, and I think
your service is invaluable to people such as myself that have no idea relating to the law
and seem to spend most of our time banging our heads against a wall. I know I was the
bad guy in this case, but at no time was I made to feel as such and it made everything
that much easier to come to an agreement. Your service is greatly needed and
although you must feel that it is a thankless task at times, please be assured that you are
doing a great job.
I am writing to thank you for your invaluable services and all your help at the mediation.
I particularly appreciated your re-arrangement of your diary and your willingness to
travel to Northampton on such a busy day. Thank you again for facilitating a successful
conclusion to this case.
I would like to express my thanks to the court office staff for their patience and
efficiency. I am also very grateful to X [the mediator] for her friendly but highly
professional assistance over what has been a very stressful time.
We have today completed a process with the assistance of X, the Small Claims
Mediator; and although we have completed the on-line survey as requested, we felt it
important to write to praise the service we have received. X was approachable,
efficient and exceptionally professional throughout the whole process; and from the
time of our initial contact to today's outcome, she made a difficult issue more bearable
to deal with.
Thank you very much for your excellent and very patient mediation this morning! It is
really very much appreciated.
We were extremely pleased with the mediation, which we thought was professionally
and cleverly brought to a resolution.
Thank you for your help and understanding - it made the process a lot easier than I had
imagined it would be.
5. Does the scheme have the support of the responsible public authorities in the
Country?
The responsible public authority, HMCS, is an executive agency of the Ministry of Justice,
which oversees all courts in England and Wales. The roll out of the service across England and Wales had Corporate and Ministerial approval and is also supported the Lord Chancellor’s Breakthrough Strategy, where the presumption is that all but the most complex small claims can be dealt with by mediation.
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6. Do you believe the scheme to be usable in other courts in European States?
There is no reason why a free - or relatively low-priced - small claims mediation scheme based on the above model could not be put into operation in most European States.
However, any member state interested in setting up a scheme would need to take account of the following:
The efficiency of the existing small claims process. If the existing processes are
efficient, there might be some reluctance in introducing an untested mediation service.
We too faced some initial reluctance in England and Wales, but the judiciary were
willing to work closely with us in designing a workable scheme.
Financial limits for small claims will vary across Europe, and if the limit is too low, there
may be insufficient throughput of cases. To make a scheme viable.
Throughput of cases - are there sufficient cases per annum to justify an in-court scheme?
Referrals - will there be sufficient cases referred to the service by the judiciary and self referral by the parties themselves?
Accommodation - are there suitable offices for the mediator and rooms to conduct
mediations?
Settlement Rates - the mediator needs to achieve high enough settlement rates to divert enough cases from the court system to free up court resources in order to make
offsetting savings.
Support of the Judiciary - high level of judicial engagement is required for the scheme to be publicised amongst the judiciary and to ensure sufficient judicial referrals.
Training/Recruitment/Accreditation of mediators - the mediators should be
trained/assessed in order to ensure they meet the quality standards adopted by other
mediation providers in the State.
Support/Cover for mediators - procedures need to be put in place to ensure continuity of service during absences, such as sick leave, annual leave and maternity leave.
For now, it is possible for parties based in other European States involved in a small claims dispute with a party based in England and Wales to access the mediation service here by telephone. Indeed, the small claims mediators have been able to settle cases with parties overseas by both telephone and email.
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