OPEN CONSULTATION: Small Claim Mediation Services in the UK

Resolving disputes in court is expensive and time-consuming. In view of having over two years of backlog cases in the UK, an alternative way of resolving disputes is on the way.

The UK Government reveals plans to divert thousands of civil legal disputes away from court on 26 July 2022

What is Mediation? (This is an excerpt from an interview with Dr. Francis Law, President of the Hong Kong Mediation Centre, Mainland-Hong Kong Joint Mediation Centre, and International Dispute Resolution and Risk Management Institute)

Mediation is a kind of dispute resolution. Parties will achieve very unique benefits from using mediation.

1. It is a process specially designed to resolve disputes.

2. The only process that facilitates communication among parties and handles their misunderstanding stemmed from culture, practice, expectation, and other differences

3. Save substantial time and money (1 to 4 months in mediation compared to years in litigation) i.e. It saves over 90% of expenses and 90% of the time if parties use mediation.

4. Parties autonomy - In mediation, decisions are made by the parties, not the third party (mediator). It is the processing full of parties’ autonomy.

5. Fully considered the interests of all parties – Relationship, Operation, Reputation, financial situation, and all others not limited to the legal issues

6. The settlement is most satisfactory to the needs of parties (maximization of parties’ interests)

7. Predicable result and finality.

The following are my answers submitted to the consultation by HMCTS on Small Claim Mediation Services in the UK on 26 July 2022

(Respondent: Selana Kong)

1. We propose to introduce automatic referral to mediation for all small claims (generally those valued under £10,000). Do you think any case types should be exempt from the requirement to attend a mediation appointment? If so, which case types and why?

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Cases of criminal nature. Cases that involved long-term relationships such as divorce settlement, custody settlement, and inheritance settle cases will take longer than 1 hour to resolve successfully. And when the defendant is financially unsound, e.g. unemployed, bankrupt, or in liquidation, you may not be able to get your money back.

2. Do you think that parties should be able to apply for individual exemptions from the requirement to attend mediation, assessed on a case-by-case basis by a judge? If so, why? And what factors do you think should be taken into consideration?

No. The public in general does not understand mediation, and they don't know how the process works, they will most like file for the exemption no matter what, and causes a huge workload for judges. Alternatively, trained mediation advocates act as a judge for these cases. Meanwhile, HMCTS should provide guidelines to everyone about what cases are NOT mediable and make this clear on the Claim Form.

3. How do you think we should assess whether a party who is required to mediate has adequately engaged with the mediation process?

At least engage in a 30-minute separate meeting with a trained mediator or mediation advocate to discuss the case. Information about procedures and processes will be shared but no legal advice should be given.

4. The proposed consequences where parties are non-compliant with the requirement to mediate without a valid exemption are an adverse costs order (being required to pay part or all of the other party’s litigation costs) or the striking out of a claim or defence. Do you consider these proposed sanctions proportionate and why?

Yes. This seems to be fair. I will also look into how other country practices this. For example, Hong Kong, Singapore, US are pioneers in mediation services.

5. Please tell us if you have any further comments on the proposal for automatic referral to mediation for small claims.

I feel that if people opt-in automatically, it can be accepted as common practice much more quickly. Practically speaking, the UK really needs to speed up its judicial services post-pandemic to deal with the backlog of cases in court. This could be a great time to introduce a world-recognized and effective way of alternative dispute resolution. It will save time and money for the government as well as the public in the long run. The UK can raise its status as a world leader by bringing about more collaboration, creative problem solving, and financial well-being through more mediation.

7. Did you receive information about the Small Claims Mediation Service? If you received information, how useful was it?

No. I haven't received any information about Small Claims Mediation Services.

8. How can we improve the information provided to users about this service?

N/A

9. What options should be available to help people who are vulnerable or have difficulty accessing information get the guidance they need?

Having mediators and mediation material available in different languages would be helpful.

10. What else do you think we could do to support parties to participate effectively in mediation offered by the Small Claims Mediation Service?

Mediation is a communication and negotiation process. Handling emotions, creating the right environment, and ensuring the well-being of mediators and parties are all part of how it works. I personally think that 1 hour is not enough because, in my experience, a mediation meeting can take up to an average of 4 hours.

What is your take on the potential Small Money Mediation Services in the UK? Don't miss your chance of having your voice heard. Click the links below to participate in the consultation.

More details on the Consultation on Small Claim Mediation Services UK

Online Survey launched on 26 July 2022 for 10 weeks.