Small claims mediation
The small claims procedure in county courts is designed to deal with disputes under the value of £5,000. If the dispute is about personal injury or housing disrepair, the limit is £1,000. Small claims are intended to be reasonably quick, informal, and easy to use. Hearings are held informally in judges’ chambers, and usually last about 90 minutes.
You should be able to take a claim to court or defend yourself against a claim without needing a solicitor to represent you at the hearing in most cases. For this reason, you can’t usually claim your legal costs from the other side if you win your case.
You can find out more about small claims on the Courts Service website.
This page gives you information about the small claims mediation scheme in England and Wales.
What it is
Advantages and disadvantages
Which disputes are eligible?
Cost
Timescale
Procedure
Outcomes
What it is
The small claims mediation scheme is funded by Her Majesty’s Courts Service (HMCS), and is free to court users who have issued a claim. Since June 2008, all 23 HMCS Courts Areas in England and Wales have full-time mediators to deal with small claims cases.
Currently, each mediator is based in one of the larger county courts, but they cover all the courts in the area. They can offer advice and information about mediation, and can also offer telephone or face-to-face mediation if both parties agree. The whole mediation process is free, once you have paid the small claims issue fee. This fee is dependent on the value of your claim, and starts at £25.
You can find out more about small claims mediation on the Court Service website.
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Advantages
- You and the other side get to shape the outcome of your dispute
- Mediation is less adversarial than a court hearing, so it is less likely to damage a business or personal relationship
- Outcomes can be tailored to what you need - there is a much wider range of possibilities than a court can order
- It is a flexible process and the procedure can be adapted to your needs
- Telephone mediation means that you don’t even need to come in to the court building - it can be conducted from the privacy of your home
- The mediation process and the outcome are confidential
- Evidence from small claims mediation pilots has shown that compliance with settlement agreements is almost 100%
Disadvantages
- Because it is voluntary, the other side cannot be forced to mediate
- It might not result in a settlement
- If you feel that the other side is bigger, or more powerful, or better at arguing, there is a risk that you may feel bullied or pressured into agreeing something you are not happy about
- From the research into the pilots, evidence suggests that settlements are often much lower than the amounts awarded in court judgements
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Which disputes are eligible?
Almost all small claims disputes are eligible for the small claims mediation scheme. You will be given information about the scheme when you complete your allocation questionnaire (see Procedure below). It is up to you and to the other party to decide whether or not you want to try mediation, but if it is going to go ahead, both parties must agree.
HMCS suggests that as a general rule the following cases are NOT suitable for mediation:
- Road Traffic Act
- DVLA
- Child Support Agency
- HM Revenue and Customs
- Bank Charges
- Water Rates
The most common cases over the first year of the scheme (2007-08) were:
- Faulty goods
- Mobile phone contracts
- Holiday disputes
- Building disputes
- Tenancy deposits
- Second hand cars and vehicle repairs
- Double glazing and conservatories
If your small claims case is about enforcing payment of money you are owed, mediation may not always be the best option. If you ‘win’ your case at a small claims hearing, there are court processes to enforce the payment. There is no such process with mediation – you will have to go back to court if the other side does not pay up. It’s worth noting, though, that since the service has been in operation there has been almost 100% compliance in cases where an agreement was reached through mediation.
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Cost
Once you have paid your court issue fee, the mediation service is free for both sides. If you can resolve the dispute through mediation, your hearing fee will be refunded if you notify the court within seven days of the hearing date. Sometimes you may not need to pay a hearing fee at all.
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Timescale
Over the first year of operation, most mediated cases were resolved in around 5 weeks. The average wait for a small claims hearing is around 14 weeks. Obviously the length of time taken to complete mediation will depend on a number of factors including the availability of both parties, the complexity of the claim, and whether both parties are willing to make genuine offers or concessions.
The average length of time for the mediation session is around an hour.
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Procedure
When you make a small claims application to the court, the other side is invited to send in a defence. When that is received, the court sends a Small claims allocation questionnaire to both parties. This will ask you whether you would like to try mediation. If both sides agree, the hearing date may well be stayed (postponed) and the small claims mediation officer will be in touch to make arrangements. If the judge thinks mediation might be suitable even if both parties haven’t ticked the box on the allocation questionnaire, s/he may suggest that the mediation officer should contact both parties anyway to discuss whether mediation could help resolve the problem. In this case the hearing date is likely to be set so that there is no delay if mediation does not work out. This process is all explained in the court order you will receive, along with a small claims leaflet explaining mediation.
The mediator will contact you to talk about mediation, explain how it works, and discuss whether you’d like to try it. If you both want to go ahead, you can agree whether you would like to use telephone mediation, or meet the mediator and the other party face-to-face in a room at the court.
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Outcomes
When this scheme was piloted in Manchester during 2005-06, a high proportion of cases settled at mediation - well over three quarters of those that mediated reached an agreement. The good news was that in virtually every case, the agreement was complied with, and only very few cases required any enforcement procedure. The bad news was that the mediated settlements were on average about half of the original claim. You can read more about the research into the small claims mediation pilots in 2006 Small claims mediation. It is also worth noting that though in theory there is a much wider range of possibilities from mediated agreements than from court judgements, in practice few mediated agreements in the pilots involved anything a court could not have ordered.
By far the largest proportion of small claims mediations (90% or more) take place over the phone. In the 12 months ending August 2009, about 73% of cases - both telephone and face to face mediations - were settled through mediation.
There is a very high satisfaction rate from people using the small claims mediation service. In responses to an online survey, 98% of users said they were satisfied or very satisfied with the professionalism and helpfulness of the mediators, and 95% said they would use the service again. Even 87% of those whose cases did not settle at mediation said they would use the service again.
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October 2009
