How can you convince your client to mediate?
Michael Collard
18th July 2023
The latest figures from HMCTS (HMCTS Management Information February 2022 – February 2023) shows that civil cases continue to progress slowly through the court system. The average time for a small claims case to get from issue to first hearing in the last year was 51 weeks, and this figure is bound to be higher for more complex claims. Small claims are those worth less than £10,000 which are supposed to be the most straightforward legally and factually. If even those cases take a year to reach a hearing, cases which are of a higher value and are more complicated will be wending their way through the system for years.
There is no quick answer being proposed within the court system to increase the speed with which claims progress through the system. The appointment of a new Lord Chancellor may bring a renewed focus on reducing the backlog, but there is likely to be pressure on him to look first at the criminal courts and secondly at the family courts, particularly those dealing with the protection of children. Instead, proposals to reduce the backlog have focussed on alternative dispute resolution – settling cases outside of court. In some cases, this can be achieved by negotiations between the parties (or, in most cases, their representatives), sometimes with the use of Part 36 offers or other without prejudice correspondence and discussions.
However, this is not always possible. The parties may be too far apart to be able to bridge the gap through negotiations alone. They may be under time pressure (because, for example, there is a hearing approaching or, conversely, because the process is moving more slowly than they had anticipated) or may not want to be the first person to make an offer. They may have issues which they want to resolve which do not fit neatly in a Part 36 offer (or indeed which the court is unlikely to be able to deal with).
In many of these cases, mediation is a really helpful solution which allows clients to tailor make their own settlement. Many solicitors are enthusiastic mediators, and do not need to be convinced of its value in dispute resolution. However, if a solicitor is not sure, or a client is not in favour, what arguments might be deployed to convince them that mediation is worth trying?
1. Compulsion
In July 2022, the government suggested that mediation should be compulsory for all small claims and there are periodically suggestions that this should also be the case with claims of higher value. Indeed, there are references to ADR and the importance of attempting to resolve issues outside court throughout the Civil Procedure Rules; the standard documents (for example the directions questionnaire for fast track and multi-track claims which requires those completing it to confirm that they have considered a stay for ADR and the costs consequences of not doing so) and the costs rules. It is not hard to envisage a time when mediation will have to be attempted in much the same way as a MIAM has to be before divorce proceedings can be issued. Whether compulsory mediation will work in a system which has always been voluntary remains to be seen.
2. Costs
There is the obvious saving in your client’s own costs to be made by settling the case at an early stage (or at least earlier than going to court). There is also the potential big saving of not having the risk of an adverse costs order if your client is unsuccessful (although it may be difficult for your client to accept that that is a significant risk). In addition, there is the risk that even if your client is successful in the case, and they obtain a costs order, the amount recovered might be affected by their conduct. For almost 20 years since the decision in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 parties have had to be prepared to justify any failure to mediate. If they have unreasonably refused mediation where there is a good chance that it would have been successful, their recoverable costs may be reduced.
3. Creative problem solving
In mediation, a qualified mediator speaks to the parties to try to help them to broker a solution. The parties are sometimes together but usually apart, and a skilled mediator will spend time with each party to understand their case, the issues which are important to them, and the parameters of settlement (bearing in mind that there may well be issues which are not within the jurisdiction of the court but which can be settled in mediation). They will discuss which of those points can be raised with the other parties, but regardless of what is shared, the mediator will be able to see where the parties have common ground, where they are apart and by how much so that they can steer the discussions to try to bridge the gap.
4. Your day in court - or not!
Superficially, failing to have your day in court sounds unappealing. People want their day in court – they want the world to hear about what they have been through and to sympathise. However, going to court is stressful. Barristers are extensively trained in cross examination, and it’s not a very pleasant experience. Many people do not want to be in conflict, particularly where the conflict is with family, neighbours, business partners or people they considered to be friends. However, nor do they want to just back down. Mediation gives the chance for people to put their position forward without the risk of being on the losing side.
5. Control
Mediation is a voluntary, confidential process. It allows everyone involved to express their thoughts and feelings about a case in a safe environment, and then to try to move forward in a constructive manner. A successful mediation will end with a binding agreement or court order (depending on whether proceedings have been issued) but even one which does not lead to an agreement of all issues on the day may have the effect of narrowing the issues allowing the parties to settle shortly afterwards. The agreement (and whether there is one at all) is within the control of the parties – if they do not want to settle, then they cannot be forced to do so. The terms of the agreement are ones that they can choose (for example, they could agree a payment plan over a long period of time, rather than potentially being told that a sum is due and should be paid within 14 days).
It can be helpful to have a mediator who is familiar with the area of law involved in the dispute, but it is not essential. It is, however, helpful to have a mediator who is good with people, who can gain the trust of those participating, and who can listen and think creatively in order to facilitate settlement. Our Head of Chambers, Michael Collard, is a trained mediator who particularly mediates any type of property dispute but is also able to accept instructions to act in a wide range of civil cases.