UK Government progress on mediation is welcome – but must be rigorous and properly funded

The UK Government has today announced plans to introduce mandatory mediation for lower value disputes in England and Wales. Under the plans, it will be compulsory for claims under £10,000 to be referred to a free 1-hour mediation session conducted by a mediator from HM Courts and Tribunal Service (HMCTS). Parties will not be able to opt out of the mediation simply on the basis that they don’t want to take part, although the consultation issued alongside today’s announcement will look at the question of exemptions in certain cases. The government claims that this reform could help more than 272,000 people each year to settle their disputes outside court.

The Chartered Institute of Arbitrators (CIArb) has been an active supporter of the Government’s ambition for mediation to play a greater role in the civil justice system. We made a detailed submission to the Call for Evidence on Dispute Resolution in England and Wales last year and have been working closely with the Ministry of Justice (MoJ) team on how mediation could be made effective.

Whilst we welcome the fact that progress is being made towards this ambition, free 1-hour telephone sessions must not be confused with the kind of wide-ranging reforms that are necessary if the potential of mediation is to be fully realised across the justice system. We have emphasised the importance of using highly trained and properly funded mediation professionals if the rollout of mediation is to be successful. The government has at least recognised that the proposal will require significant investment in the existing Small Claims Mediation Service (SCMS), whose staff face significant time and capacity constraints on their ability to offer a comprehensive range of mediation options. Therefore, the related issues of capacity, service quality, and ‘fit’ between the dispute and the type of mediation offered still need to be properly scrutinised.

We are therefore pleased that the consultation opened today will also look beyond the relatively minor initiative of telephone mediation for small claims to examine “embedding mediation as an integral step in the court process more widely across the civil justice system”. In particular, we are encouraged that the government explicitly recognises that this will rely on high-quality mediation provision outside of the court system, and we look forward to continuing our work with the MoJ on how this can be achieved.

Catherine Dixon, CIArb Director-General:

“Unlocking the full value of mediation and other alternatives to court, is the central purpose of CIArb, so we are pleased the government is committed to a vision of a justice system in which mediation is integral. However, as we have always emphasised, the evidence shows that to be effective, mediation must be properly funded and rooted in high professional standards based. Free 1-hour telephone sessions can only ever make a small contribution to this vision, and so we would welcome government’s focus on the long-term ambition of embedding mediation across the civil justice system as a whole. This is what will improve outcomes for parties, reduce costs in the court system, and enable economic growth.”