Tag: mediation

Compulsory mediation could be extended to all claims in the County Court

Joanne ChaseLeave a comment

Under current government proposals mediation will be compulsory in all claims allocated to the small claims track. However, it is also considering whether to extend that requirement to all claims in the County Court. You can consider the proposal and have your say via the Consultation Paper. 

The Proposals

The proposals seek to tackle low levels of uptake of mediation and drive a culture shift in attitudes to litigation. The paper makes it clear that there will be no requirement to settle. Furthermore, as the current small claims mediation service (SCMS) is court sponsored and therefore costs neutral to the parties, it will not be an “onerous” obligation.

In reality, costs of mediation will be passed on to all court users through court fees. It will only be costs neutral if it succeeds in reducing the number of cases going to trial. 

The Role of Mediation in Settlement

Statistics show that mediation has a high success rate (up to 86%). But we should be wary of the assumption that mandatory referral to mediation will reduce the number of cases going to court by a similar amount. About 96% of civil cases in England settled outside court. However, 1.2 million claims were issued in the Civil Courts in 2020 but in the same year there were only 16,500 mediations (1.38%). This means that at least 94.62% of all of all claims settle other than by mediation.

It is questionable what benefit mandatory mediation will bring to the vast majority of cases which would have settled anyway. Particularly if court fees increase to fund it. And in those cases where agreement is not possible mandatory mediation will simply be a box ticking exercise.

The Report gives the mandatory mediation scheme in Ontario, Canada as an example of how mandatory mediation can be successful. But a 2001 report showed that mandatory mediation resulted in “full settlement of 40% of cases earlier in the process”. Overall, around 98% of cases settle before trial in Ontario.

Summary

Mediation is a useful tool for parties who want to settle. Indeed, it can force parties to review the weaknesses of their case and make settlement more likely. However, making it mandatory it is unlikely to make a significant difference to the number of cases proceeding to trial and any benefits will probably be outweighed by the costs.

You can have your say by visiting the Consultation, which closes on 4 October 2022.

Should you have any questions, you can contact the team at civilandcommercialcosts@clarionsolicitors.com.

Changes in relation to CPR Practice Direction 21

Andrew McAulayLeave a comment

From 6 April 2019, Practice Direction 21 of the CPR will be amended to make it compulsory for a bill of costs or a “informal breakdown in the form of a schedule” to be prepared and filed with any application for the approval of payment of expenses from the damages of a protected party or minor.

Many cases now settle by way of a JSM or Mediation. We recommend preparing a Bill of Costs for the JSM or Mediation in order to:

  1. Try and reach settlement of costs at the ADR meeting (to avoid the time and expense of detailed assessment);
  2. If a settlement on costs cannot be achieved, then to obtain a healthy payment on account; and
  3. Proceed swiftly post settlement with any application under CPR 21 (where applicable)The bill or schedule should make a clear distinction between inter partes and solicitor/own client costs. In terms of a schedule, we recommend preparing a statement of costs for summary assessment (Form N260 or N260B) which can be adapted, where appropriate.The bill or schedule will enable the Judge at the approval hearing to properly determine the appropriate amount to be deducted from damages, which may include (in terms of a Solicitor) a success fee, ATE insurance premium and any inter partes costs shortfall (if claimed).This blog was prepared by Andrew McAulay who is a Partner at Clarion and the Head of the Costs and Litigation Funding team. Andrew can be contacted at andrew.mcaulay@clarionsolcitors.com or on 0113 336 3334.