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Crap - bollocks - a form of blackmail
Small claims mediation - a user's comment 1
In December, the DCA published research into three pilot schemes offering mediation in small claims disputes. The pilots took place in Manchester, Exeter and Reading.
The conclusions seem to show that mediation is highly successful in resolving small claims and that the process is popular with the parties. However, a more detailed reading of the reports reveals some serious issues for concern.
Is the service really cost-effective?
The settlement rate for cases that ended up at mediation in Manchester was 82%. However, only 34% of cases actually referred to mediation were settled, and less than 10% of all small claims were resolved through mediation. Similarly, at Exeter, the 69% settlement rate of mediated cases translates into a 43% settlement rate for the cases referred to mediation, and less than 20% for all small claims cases.
What do parties think about their outcomes?
In Exeter, where the research compared cases settled through mediation with a control group where a judgement was issued, the mean value of mediated settlements was 63% of the claim value, and the mean value of judgments was 83% of the claim value. Claimants using mediation can therefore expect to settle for significantly less than those going to court. In both schemes, some claimants expressed disappointment at what they perceived as low settlements, and some defendants were unhappy at having agreed to pay more than they thought was fair.
Does mediation offer added value to the parties?
One of the claims made for mediation is that it can offer outcomes which are not available through court orders – apologies, changes in policies and procedures etc. However, in the Manchester pilot, only 12% of mediated settlements included an outcome that could not have been ordered by the court, and in Exeter the percentage was even lower.
Is the mediation process really justice?
Although mediation was meant to be voluntary, in Exeter many parties believed that it was compulsory, because of the language used by the court in referring them. Although mediators are meant to be impartial, in Exeter they tended to slip back into their role as solicitors and give advice to the parties; in both pilots the desire of the mediators to achieve high settlement rates could appear to compromise neutrality. Some parties felt aggrieved that the rights and wrongs of the case were not taken into account by the mediator, and that they were pressured and ‘mildly bullied’ to reach a compromise. There is no independent scrutiny of either the process or the settlement, and parties were rarely aware of the complaints procedure at either court. The Exeter researchers commented that 'too much emphasis is placed on expediting cases and too little on the safety of outcomes in terms of justice'. 2
In a postscript, the Exeter researchers note that changes have already been introduced to address some of these concerns. The Manchester report makes 13 recommendations to improve clarity and accountability; if the DCA proceeds with its plan to roll out small claims mediation in other courts, these concerns should be taken seriously.
1. A litigant's comment about mediation. Jill Enterkin and Mark Sefton, DCA Research Series 10/06 (pg 76)
2. Ibid (pg 86)
Read more details - Small claims mediation – does it work?
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