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UK Government Proposes Mandatory Mediation In Small Claims And Consults On Increased Regulation Of The Mediation Industry – Arbitration & Dispute Resolution



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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:

  1. 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.

  2. 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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

POPULAR ARTICLES ON: Litigation, Mediation & Arbitration from UK

Case Law Updates – July 2022

Barton Legal

The parties engaged in an adjudication, in which the adjudicator found the Claimant was owed around £2,204,217.13 (on 17 January 2022).



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