The Ministry of Justice (MoJ) has launched a public consultation on Increasing the use of mediation in the civil justice system.
It has also given an indication that the government intends for the UK to sign and ratify the Singapore Convention on Mediated Settlements.
The consultation issues
The consultation document seeks views on two distinct issues:
- A government proposal to introduce mandatory mediation for all defended Small Claims in the County Court (ie most claims valued below £10,000). Under the proposal, all parties in such actions will be required to participate in a free one hour telephone mediation (not just an information session about mediation) conducted by mediators within HMCTS – under expansion of the Small Claims Mediation Service (which is currently voluntary).
It appears to assume that the proposal will proceed, with the consultation focusing on possible exemptions (by case category and/or on a case-by-case basis), sanctions for non-compliance, and how the court should assess whether a party has engaged adequately with the mediation process. - In anticipation of extending mandatory mediation to other County Court claims and beyond, involving use of the private mediation sector, views are sought on whether there is a need for increased regulation and oversight of the mediation industry, such as through accreditation of mediators, formalising standards of conduct and/or establishment of an industry regulator.
The proposal for mandatory mediation of Small Claims, although modest in terms of what it demands of parties, is significant as the first instance of compulsory mediation being made a permanent feature of an entire area of the English courts. Of course, such reform has been clearly foreshadowed over the past year, since the Civil Justice Council’s groundbreaking July 2021 report endorsing compulsory ADR in principle, which has been fully embraced by both the MoJ and the senior judiciary (as noted here).
The current consultation also sits alongside a parallel workstream being pursued by the Department of Business, Energy and Industrial Strategy (BEIS) regarding ADR of consumer disputes outside the court system (such as through Ombudsmen and other ADR schemes). As we recently reported, it is examining the role of compulsion in such schemes as well as introducing measures to strengthen the accreditation framework for consumer ADR providers.
The current MoJ consultation closes on 4 October 2022.
Singapore Convention
Although not the subject of the consultation, the Singapore Convention is mentioned briefly in a section referring to other government initiatives to promote mediation. It notes that these include
“.. proposing to support UK’s intention to ratify the UN Convention on International Settlement Agreements (the “Singapore Convention on Mediation”)“.
It is not clear whether this should be read as confirmation that the government has made its decision on whether to sign the Convention, and we still expect a more formal announcement in that regard following its consultation on that specific question earlier this year. However, the above reference supports the current widespread expectation that it will do so.
For further information, please contact:
Jan O’Neill, Herbert Smith Freehills
jan.oneill@hsf.com
