The Ministry of Justice (MoJ) has ruled out any exemptions to the requirement for compulsory mediation that it is set to introduce for small claims.
But mediators will not be asked to say whether parties had engaged adequately in the telephone mediation process – attendance will be all that is needed to meet the obligation.
The MoJ announced its plans for compulsory mediation on Tuesday, starting with specified money claims and moving on at a later date to personal injury and unspecified money claims.
It subsequently published the detailed report of the consultation it issued a year ago, which received 134 responses. The MoJ also conducted three roundtables with stakeholders.
The policy will apply to all small claims issued under the standard part 7 procedure but not claims issued under non-standard procedures, such as possessions claims. The aim is to introduce it for specified money claims in this Parliament.
The report said: “The government is persuaded by the view of many respondents to the consultation that all standard part 7 cases are suitable for mediation – we will therefore not provide for any case type exceptions within part 7 claims from the requirement to mediate…
“We will also not be providing for exemptions on an individual basis. As respondents pointed out, allowing for individual exemptions would complicate the court process unnecessarily, requiring additional time and costs to assess whether a party’s application for exemption is valid.
“Moreover, the government believes there would be a significant risk that enabling individual exemptions would create a culture of avoidance; this would undermine our overarching objective to standardise participation in mediation.”
However, HM Courts & Tribunals Service will develop a safeguarding and vulnerability protocol, which will “provide a framework for bringing the mediation process to a close in case of safeguarding concerns or unavailability of alternative reasonable adjustments”.
If necessary, the MoJ said, the process may be brought to a close ahead of the appointment. The protocol will also provide a framework for connecting parties to external support services where there is a potential risk of harm.
Parties would be expected to engage in mediation “in good faith”, the report said, adding that many respondents advocated allowing mediators to assess whether parties had engaged adequately in the mediation process.
“However, others felt that this approach would breach the confidentiality of the mediation, and potentially damage parties’ confidence in the process.
“On balance, the government is of the view that, at this time, the only requirement will be to attend the scheduled mediation appointment, although we may review this decision following evaluation of the policy.”
Those who fail to attend the mediation will face the same range of sanctions that the court can apply for other breaches of court rules, and it will be able to take mitigating circumstances into account.
The one-hour mediation will see the mediator ring each party and speak to them in turns – the parties will not talk to each other.
The MoJ has decided that, given the “strength” of the self-regulation that currently exists for mediators, “statutory regulation of the entire civil mediation sector would be disproportionate”.
“However, respondents raised genuine concerns that a party being referred to external mediation by the court, especially litigants in person, could find the market confusing and inadvertently use mediators who lack training, experience, or protections like insurance and complaints handling procedures.
“This could result in perverse outcomes for parties and erode trust in integrated dispute resolution.”
The MoJ said it would work with the sector to promote standards and consistency, noting that many mediators are professionals, like lawyers, already regulated in other aspects of their professional lives.
“We will continue to review how these existing regulatory requirements could be considered for the purposes of overseeing integrated mediation while also ensuring that the specific knowledge and skills needed for mediation are in place.”
The report reiterated too the MoJ’s ambition to extend the policy in time to fast-track and multi-track claims in the county court.