The small claims mediation service is a free service provided by the civil courts for people involved in a small claims dispute. Read on to find out what it is, when you should use it and what you can do to prepare for it.
The first thing to understand is that a mediator is not a Judge. The mediator’s role is not to decide who is right or wrong and it will not take sides. The mediator might not know a great deal about the claim or have any particular legal training or knowledge.
However, the mediator is skilled in negotiations and helping the parties in disputes to reach terms of settlement. The mediator will try to break down barriers and encourage the parties to set out what it is each of them is seeking and then explore whether there is middle ground to strike a deal.
“Mediation is a very effective and efficient method of resolving a dispute and reaching terms of settlement, rather than going all the way to trial. There is no guarantee a claim will settle at mediation but a large number do.”
When Use The Small Claims Mediation Service?
It is better for mediation to take place sooner rather than later. This is for the benefit of all concerned. If a claim can be settled after a defence has been filed, it can avoid the need to prepare witness statements, documents and the trial itself. This saves both parties and the court service time and expense.
The judges cannot force the parties to a small claim to use the service but they encourage the parties to take advantage of it. Generally, you should try mediation if you are involved in a small claim as there is no cost to you. The court provided mediation service is free.
Under the court rules, Judges are required to actively manage how claims progress including encouraging the parties to use an alternative dispute resolution procedure, such as mediation.
What Types Of Claim Can Be Mediated?
There is no real limit as to the type of claim that can be mediated under the small claims mediation service. It is the value of the claim that is important (not exceeding £10,000), rather than the issues.
The court mediators therefore find themselves dealing with a wide range of disputes including;
- Contracts for goods and services
- Non-payment of professional fees
- Non-payment of rent
- Insurance disputes
- Building disputes
- Debts and unpaid invoices
- Negligence claims
- Boundary disputes
How Is It Arranged?
After a defence to the claim is filed, the court will send questionnaires to the parties for them to complete. These questionnaires are known as directions questionnaires. On the front page of the questionnaire is a question asking each party whether it wants to use small claims mediation.
Please note that just because you tick the box on the directions questionnaire saying that you wish to mediate, it does not mean that mediation will actually happen. It requires both parties to the dispute to agree to it. There is also the risk that the court service will be unable to arrange a mediation before the trial date. The court should however, put the proceedings on hold or hold off setting a trial date until the mediation has taken place.
If a mediation is to take place, the court office will be in touch to arrange an appointment. If you don’t hear from the court within a fortnight of filing your directions questionnaire, give the court a call to remind them you want to use the small claims mediation service.
A word of warning. The feedback we receive is that the small claims mediation can be very difficult to get hold of. Persistence may be the key so if you want to engage the service, get in touch early and keep calling.
The current contact details for the service are:
Telephone: 0300 123 4593
Email: scmreferrals@hmcts.gsi.gov.uk
Small Claims Mediation, HMCTS, PO Box 8793, Leicester, LE1 8BN
The Mediation And Mediator: What To Expect
The mediation takes place over the telephone. The session is likely to be limited to 1 hour.
Because the mediation takes place over the telephone, it is a convenient and cost effective method of trying to resolve a dispute.
The mediator is a court employee who is trained in mediation skills. He is not a Judge. He may not know a great deal about the dispute and will not give any legal advice or provide any indication as to the strength of each case. His role is to act as a middle man to see if terms of the settlement can be reached.
The mediator will focus on striking a deal, rather than getting into the detail or trying to decide who is right or wrong. Rather than apportioning blame, he will look to rebuild the relationship if appropriate.
The mediator will know that feelings as well as facts may affect the parties’ decision making. He will try to control emotions and keep the negotiations on track.
The mediator may not be familiar with or even have access to the papers already filed with the court. It is not his role or necessary for him to know all the detail and facts.
What Can You Do To Prepare For A Mediation?
You should go into mediation with an open mind. Mediation works best when the parties are willing to take part and are prepared to be as honest and open as they can be about the dispute and how it has arisen.
You should consider in advance what sum or terms you would be prepared to accept to strike a deal.
It is likely however, that to reach a settlement, both parties will need to compromise and make concessions.
So What If A Deal Is Reached?
If terms of settlement are reached, the mediator will help record them and notify the court staff. The mediator will not however take any steps or be involved in enforcing the terms of a settlement if one party fails to comply (for example if someone agreed to pay a certain sum of money and failed to do so).
What If Deal Isn’t Reached?
If the claim doesn’t settle, the matter will proceed as normal. There is nothing to stop the parties trying again to reach terms of settlement between the two of them before trial. However, if terms cannot be reached, a Judge will decide the matter at trial.
Anything said during a mediation cannot be repeated to the Judge at trial, if terms of settlement are not reached. What is said is privileged and confidential. This is to ensure that the parties can feel able to speak freely to encourage and help them narrow the issues and to reach terms of settlement.
Is It Worth The Effort?
Yes. The court provided mediation service is free and you don’t need to carry out a great deal of preparation before the mediation takes place. If the claim settles, you can avoid the stress and time of the trial and preparing for it.
The court collects anonymous feedback on the service. The satisfaction rate by users of the small claims mediation service is reported to be high.
Complaining About A Mediator
The mediator is there to help the parties make a deal, not decide who is right or wrong. He is impartial and working in the best interests of both parties.
However, if you attend mediation and want to complain about the mediator, you will be told to contact the court manager to go through their complaints procedure.
What About Mediation For Higher Value Claims?
This post is about the small claims mediation service. There is mediation available for claims outside the small claims track such as fast-track and multi-track track claims. The National Mediation Helpline can assist with such matters or the parties can instruct a private mediator. There are a large number of mediators out there, both independent and mediation bodies. CEDR is a good place to look for a mediator.
