Time Limited Mediations – thoughts from the recent CMC Conference

In November I attended the annual conference of the Civil Mediation Council (CMC) and share below three issues raised there.

 

Those issues were access to mediation for mid-level cases, the increasing numbers of defended county court claims and the effectiveness of half day (or time limited) mediations for more complex disputes.

 

Particular concerns were expressed by speakers  about the availability of mediation services for disputes falling between the small claims limit and larger High Court actions, a ‘gap’ which the  Civil Justice Council Working party final report on ADR (https://www.judiciary.uk/announcements/new-report-on-alternative-dispute-resolution/ ) had identified as a concern.

 

These are disputes, generally in the range  £10,000 to £100,000, where the sums involved are too high to trigger the involvement of the court appointed Small Claims Mediation Service (although the lack of availability of that service in practice, even for small claims, was also a recurrent theme at the conference) but at a level where the legal costs involved in mediating (to which the mediation fee is of course only a small part) could still present a significant barrier to the use of mediation or ADR.

 

Of course, for DASLS members that gap is not an issue as they have, unlike solicitors in much of the rest of the country, their own mediation panel of experienced mediators available to mediate such cases. As one of only two (together with Manchester) ‘pilot’ providers of a court scheme for such cases the DASLS panel is at the forefront of seeking ways solicitors and clients with mid-range claims can access mediation as an alternative to Court proceedings. As Jeremy Ferguson reported, in the September edition of this newsletter, the availability of that scheme has in cooperation with the court service and judiciary recently been extended to all Devon Courts.

 

Secondly, the CMC conference  heard that demand for mediation for such cases  has been increasing in part due to a significant rise in the number of defended claims coming through the system coinciding with an increased use of the Money Claim Online web service. It seems that replacing the physical demands of printing, placing in envelope and posting with an online ‘click’ may have removed a greater barrier to defending an action than had been anticipated.

 

Finally, a later discussion of the relative benefits of full day and half day (or time limited) mediations for more complex cases drew a variety of opinions. Many spoke of the increased time to build relationships and trust and the greater time that a full day provided for parties to move from positions to interests whilst others offered anecdotal evidence of parties bringing greater focus to a time limited mediation and a willingness to move from their starting positions earlier in the day. There was agreement that disputes where parties were so entrenched that any movement was likely to be a time consuming and tricky task or where a mediation booking was accompanied by a promise limited to ‘a copy of the pleadings with a position statement to follow’ most mediators  found themselves bemoaning the fact that only a half day had been booked.

 

However, there was also a general awareness of the cost implications of a longer mediation, particularly where counsel as well as solicitors and mediator are engaged, and the need for  mediators to provide ways to help parties and their advisors make the best use of time limited mediations.

 

In my view almost all mid-level cases suitable for mediation can be successfully mediated within a half day booking, provided there is some scope and availability to extend the appointment if required by the parties. However, the more complicated the issues or the more entrenched the parties the greater the need for proper preparation and preliminary engagement with the mediator before the mediation day. Most mediators are happy to discuss such issues on a party and mediator basis in advance of a mediation and I always positively welcome the opportunity to do so.

 

Lawrence Harrison

Mediation Panel Member

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