Mediation and Settlement of Small Claims Cases
| Author | Patricia Pearl/Tim Parker |
| Pages | 151-165 |
Part 2
Mediation and Settlement
Chapter 7
Mediation and Settlement of Small Claims Cases
7.1 MEDIATION – OVERVIEW OF FEATURES
Cases which qualify for the small claims track also qualify for out of court mediation at no additional charge. The mediation is conducted by a trained mediator, not a lawyer or a judge, and always by telephone. If mediation is successful, the parties do not need to come to court for a hearing. The mediation scheme is an important, well-established and successful part of the small claims process:
• The service is offered to all small claims.
• Mediation is voluntary: both parties must agree to take part before the mediator will become involved.
• The mediator is not a judge but is trained to conduct mediations.
• Mediations are usually successful in the sense that the case settles and there is no court hearing; this saves the hearing fee, which is presently between £25 and £335.
• The process is confidential to the parties.
• If the case does not settle, the judge should not be told what was said during mediation.
This scheme is administered and paid for by the Courts Service. This chapter equips the reader with the information needed to make the most of the scheme or to decide if it is not suitable for a particular case. Table 7.1 sets out the stages of mediation. Paragraph 7.3.3 considers which cases are suitable for mediation.
The Small Claims Mediation Service is the main route by which small claims arrive at a negotiated settlement, but it is not the only one. Paragraph 7.9 gives some general information about settling claims.
154 Small Claims Procedure in the County Court
Table 7.1 Procedural table – small claims mediation
Before allocation The parties are sent information about the Small Claims Mediation Service with the directions questionnaire (see paragraph 7.3)
At the allocation stage The parties are invited to take up the mediation option, or the judge can select the case for mediation
If mediation is selected, then in an OCMC case (see paragraph 2.2.2) the case is put on hold for 4 weeks, and no hearing date is set. In other cases, the court will either make a similar arrangement or, if it gives directions leading to a hearing date, allow at least 4 weeks for mediation to take place before any other steps are required
The court staff notify the Small Claims Mediation Service about the case (see paragraph 7.4.1)
The parties must ask the mediator to set an appointment (see paragraph 7.4.2) – save in some OCMC cases, where an appointment will be offered automatically
The mediation takes place by telephone – the appointment is no more than an hour
If mediation succeeds (settlement reached)
The mediator produces a Settlement Agreement (Form N182, set out at Appendix 10, or, in an OCMC case, the OCON Settlement Agreement) and in most cases the court case is automatically stayed (see paragraph 7.6.1)
If mediation fails The case returns to the system for a hearing before a judge (see paragraph 7.6.2)
7.2 DEFINITION OF MEDIATION
Mediation is a voluntary, private dispute resolution process in which a neutral person helps the parties try to reach a negotiated settlement. The mediator cannot impose a solution on the parties, but can help them reach their own agreement. The discussions are without prejudice
7.3 CHOOSING MEDIATION
7.3.1 Information about mediation
There is an online guide to the court’s Small Claims Mediation Service.
7.3.2 How to opt for mediation
If your claim is proceeding by the traditional paper-based method, you will receive from the court a directions questionnaire (see paragraph 4.7), which asks whether you agree to the case being referred to the Small Claims Mediation Service. If both parties answer ‘yes’ then in most types of case the court will automatically make that referral.
If you are using OCMC (see paragraph 2.2.2), the forms which both parties complete online ask about mediation. If both parties choose mediation, the court must refer the case to the Small Claims Mediation Service. OCMC is moving to a different approach by which parties are assumed to agree to mediation unless they opt out.
7.3.3 Is the case suitable for mediation?
Mediation is usually worth trying. Most litigation involves uncertainty and risk. If the outcome is uncertain, it is usually sensible to seek a compromise. A negotiated settlement may also allow the parties to achieve something that the court has no power to order. We expand on these points at paragraph 7.9.
Mediation lets the parties explore settlement options without the stress of having to communicate directly with each other, and sometimes the mediator might suggest solutions that the parties had not considered.
The mediator cannot decide who is right, give advice about the claim, or put a value on it. Note also that there is no point in arranging mediation if you are not willing to negotiate, or if you do not feel you have enough information about the case to be able to do so.
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7.4 PROCEDURE BETWEEN SELECTION FOR MEDIATION AND MEDIATION
7.4.1 What the court does
First, the court refers the case to the Small Claims Mediation Service.
Second, the court will ensure that the parties have time to mediate...
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