County Court mediation - ADRnow

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County Court mediation

This page contains information on county court mediation, including:
What it is
Advantages and disadvantages
Which disputes are eligible?
Cost
Timescale
Procedure
Small Claims Mediation
Outcomes
How to find information about county court mediation
 

What it is
Many disputes are taken to the county courts if they cannot be resolved between the parties. These disputes are often about money owed, either for work done, or for goods or services provided. People also issue claims for disputes over:

• Bad workmanship
• Damage to property
• Compensation for road traffic accidents
• Personal injury claims
• Housing disrepair
• Unpaid rent

Cases going to the county court are divided into three levels:

• Small claims (claims under £5,000 for most cases, or under £1,000 for housing disrepair and personal injury)
• Fast track (claims between £5,000 and £15,000)
• Multi track (claims over £15,000)

Many cases which are taken to the county courts could be resolved through Mediation. It is government policy to encourage all court users to think about mediation before making an application to court, and courts have the power to suggest mediation as a way of resolving suitable disputes. They can also impose cost penalties if you unreasonably refuse to mediate. Generally, in fast track and multi track cases, the loser pays the winner’s legal costs. If you refuse to mediate, and the judge thinks this is unreasonable, you may not be able to claim your legal costs from the other side, even if you win the case.
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Advantages

• You get a chance to tell your story face to face with the other side
• You get to decide the outcome of your dispute
• Most cases settle before a hearing, and mediation can be quicker and less expensive than long settlement negotiations
• Mediation is not adversarial, so it is less likely than court to damage a personal or business relationship
• Outcomes can be tailored to what you need - there is a much wider range of possibilities than a court can order
• It is flexible and the procedure can be adapted to your needs
• It can be less formal and less intimidating than a court hearing
• It is private and confidential
• It can narrow the issues in dispute and contribute to later settlement
• Small claims mediation can take place over the telephone
• In small claims mediation, there is hardly ever a problem with enforcing an agreement

Disadvantages

• Because it is voluntary, the other side cannot be forced to mediate
• It might not result in agreement
• If you don’t reach an agreement, it can add to the cost of settlement negotiations and litigation
• 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
• In small claims mediation, settlements are often much lower than the amounts awarded in court judgements
• The quality of mediation provision can vary

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Which disputes are eligible?
Most county court disputes can be considered for mediation. But it is hard to say in advance which disputes are likely to reach an agreement successfully if they do go to mediation. Research into the Central London County Court mediation scheme over ten years showed that the cases most likely to settle through mediation are the cases where both parties want to mediate!
 
Mediation may well not be suitable in cases where:

• one party is afraid of the other
• there is a significant power imbalance between the parties
• at least one party needs a legal judgment or wants to set a legal precedent
• it is important to rely on court procedures to enforce a judgement

Mediation will virtually never be suitable in really urgent cases, such as where you are at risk of losing your home.
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Cost
If you agree to use the small claims mediation process, then mediation in small claims cases is free once you have paid your court application fee.
 
Mediation in fast and multi track cases arranged through the National Mediation Helpline is subsidised by the government and by the mediation providers. The fee is £50 per party for a one hour mediation in a small claims dispute, and £100 per party for a two hour mediation. Fast track claim mediations are £250 per party for three hours, and multi-track claims are £375 per party for four hours. You will need to add VAT to these fees, and the total cost will depend on the value of the claim, and the time taken for the mediation appointment.
 
In Scotland the Edinburgh Sheriff Court mediation scheme is managed by the Edinburgh Central Citizens Advice Bureau, and is free to both parties.
 
Other costs
It’s a good idea to have a legal adviser with you at a mediation in fast and multi track cases. Mediators should be neutral, and will not give legal advice to either side. Your own solicitor or adviser can give you an idea about what might happen if you went to court, and whether a proposal is fair and reasonable. Generally, parties agree to pay their own fees and costs for mediation, including their share of the mediator’s fee, and their own legal advice. However, there is no reason why one party cannot agree to pay the other party’s costs as part of the mediation settlement.
 
If you can resolve your dispute through mediation, then you either will not have to pay the court hearing fee, or you will have the fee refunded if you notify the court at least seven days in advance.
 
Most people do not have a solicitor acting for them when they are dealing with a small claims case, and so are unlikely to have a legal adviser if they take part in small claims mediation.
 
Public funding
In England and Wales, reasonable mediation costs, including legal help in preparing for mediation, the mediator's fee, and any administrative charges, can be covered by Legal Aid if you are eligible.
 
In Scotland and Northern Ireland, the costs of civil mediation are not covered by Legal Aid, although in Scotland legal advice and assistance may be available in relation to legal work in preparing for a mediation.
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Timescale
In small claims cases, this will depend on how busy the mediation officer is in your court area. Normally the court will give you information about the small claims mediation officer as soon as you put in your application, and ask you to get in touch with him or her. The officer will then speak to you and the other side, and see if they can broker an agreement over the phone, or arrange a face-to-face meeting if that is needed. This should all happen while you are waiting for the date of your hearing. This means that if you reach an agreement you can notify the court and cancel the hearing. If you are unable to agree a solution, then the hearing will go ahead. Over the last year, the average time for cases that settled through mediation was 5 weeks; cases which went to a hearing took around 14 weeks.
 
In fast and multi track cases, the court will give you a leaflet about the National Mediation Helpline, or you can contact the helpline direct even before you put in an application to the court. The helpline staff will answer any questions you have about how mediation works, and put you in touch with a local mediation provider approved by the Ministry of Justice. The local mediator will contact the other party, and, if they are willing to try mediation, make all the arrangements for the mediation to take place. How long this takes will depend on how smoothly this process goes.
 
In some courts, the date of the hearing is set, and the mediation takes place while waiting for that date. As with the small claims process, this means that if you reach an agreement you can notify the court and cancel the hearing. If you are unable to agree a solution, then the hearing will go ahead without any delay.
 
In other courts a hearing date is not fixed if the parties are going to try mediation; this means that a hearing fee will not have to be paid at that stage. If no agreement is reached, or the mediation does not take place, then a date is fixed for the court hearing, and the hearing fee paid.
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Procedure
Referral
Mediation in the UK is voluntary, so you are not forced to mediate. But it is now fairly common for judges to suggest mediation, if they think the case is suitable. Judges do have the power to penalise you on costs if you unreasonably refuse to consider mediation (see The Halsey Case 2004 for more information), so if you have a good reason for refusing mediation, you may need to explain it to the judge.
 
Until 2007, in some courts, there was a mediation scheme linked to the court, and either the court staff or the mediation scheme administrator was in charge of arranging the mediation.
 
From 2007, however, all court mediation schemes are run through the National Mediation Helpline. You can phone the helpline before you make an application to the court, if you would like to find out more about mediation.
 
When you make an application to the court, you will receive an Allocation questionnaire. This will ask you whether you would like to try mediation, and whether you would like the court to put you in touch with the National Mediation Helpline to make arrangements. In come courts, the judge may suggest that you try mediation, or may even ‘refer’ the case to mediation. Some judges can be quite forceful about this; you may want to take up the suggestion, or you may feel on reflection that mediation is not right for you. If this is the case, you will need to explain why to the judge in order to avoid possible cost penalties. Mediation is NOT compulsory in courts in the UK.
 
The mediation session
Once the helpline has put you in touch with a local mediation provider, the mediator or their administrator will contact both parties and arrange a mediation session. This may take place in a room in the court, at the mediator’s premises, or even at a local hotel.
 
At the mediation, the parties, the mediator, and any legal representatives will meet, and each party will be asked to give a brief explanation of the dispute. Often the mediator will then work with the parties in separate rooms to encourage them to speak honestly about what they would consider agreeing to, and to help them reach a mutually acceptable settlement.
 
For a checklist to help you prepare for mediation, see Tips for mediation.
 
For more on the procedure and techniques used, see Civil and commercial disputes.
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Small Claims Mediation
This is a brief summary of the small claims mediation scheme in England and Wales. You can find more details on the Small claims mediation page on this site.
 
From June 2008, all court areas in England and Wales have a full-time mediation officer based in one of the county courts, who can offer advice and information about mediation to small claims court users. The officer can also provide telephone mediation, or a face-to-face mediation appointment, if both parties agree. The advice and the mediation is free, once the small claims application fee has been paid.
 
When you make a small claims application to the court, you will receive a Small claims allocation questionnaire. This will ask you whether you would like to try mediation. If both parties 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. In this case the hearing date is likely to be set so that there is no delay if mediation does not work out.
 
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 there were no problems with enforcement. 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.
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Outcomes
Around two thirds of all the county court cases that go to mediation reach an agreement either at the mediation session, or within a couple of weeks of the appointment. In the first year of the small claims mediation schemes running throughout England and Wales, 2007-2008, the agreement rate was about the same (67%) for face to face and for telephone mediation.
 
If an agreement is reached in mediation, where proceedings have been issued in England and Wales, a mediated agreement can be made into a consent order or a Tomlin order by the court. This can then be enforced through the courts. This is not an option in Scotland or Northern Ireland. It is worth noting that in the small claims mediation pilots, mediated settlements needed little or no enforcement action.
 
Where no settlement is reached, the parties are free to continue with court proceedings. Anything that was said in the mediation is confidential and cannot normally be used in court unless both parties agree, or the judge orders it.
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How to find information about court mediation schemes
All court mediation schemes are now managed through the National Mediation Helpline. You can contact the helpline even before you put in a court claim, or get in touch once the court proceedings have begun.
 
Your local county court will make sure you have information about the local small claims mediation officer.
 
The Edinburgh Sheriff Court mediation scheme is profiled on this website
 
Information about the new in-court mediation pilot schemes at Aberdeen and Glasgow can be found on Advicefinder Scotland.
 
Existing research into court-based mediation schemes is summarised in ADR Research.
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August 2008