Evidence submitted by Devon and Exeter
Law Society
SMALL CLAIMS
IN COURT
MEDIATION
Principles
The principle of mediation in the "Small
Claims Court" is exactly the same as that applied to all
other mediations, namely:
(b) It is under the control of the parties
(c) The mediator is non judgmental
(d) the mediator cannot give advice to either
party
(e) either party is free to leave at any
time
(f) any settlement is arrived at freely between
the parties
You are referred to " A sudden outbreak
of commonsense" by Andrew Ackland for further reading on
mediation principles.
Whilst the guidance and training of Andrew Fraley
for time limited mediation is appropriate to the small claims
time limited procedure there are differences which mean that practice
has to be varied in order to meet the requirements of the Court.
The small claims scheme is based on a limit
of half an hours mediation per case (although some schemes are
trying to push this to three quarters of an hour per case). This
is of necessity a very limited time in which to meet and greet
the parties, answer any questions about the mediation process
and investigate each sides position, interests and needs in order
to help the parties to come to a mutually satisfactory conclusion.
There are a number of models which are presently
being investigated by the Department of Constitutional Affairs,
the model which this guidance is based upon is that operated by
the Devon and Exeter Law Society in Courts at Exeter, Barnstaple
and Torbay. It is appreciated that the procedures in some other
Courts may be different. Procedures can sometimes affect the view
of the parties of the mediation process.
The principal elements of the small claims scheme
are:
(a) That it is, at Exeter at least, an opt
out scheme, that is the parties are advised by the Court that
a Judge has considered the papers and has decided that the case
might benefit from mediation and the parties are therefore required
to attend at the Court on a certain day and at a defined time
to meet a mediator. There is a provision for opting out but parties
do not always see it and documentation may be changed accordingly.
(b) Mediation takes place at the Court. This
is thought an important encouragement to settlement because although
the parties are told at the very beginning that the mediator,
albeit that he or she may be a lawyer, cannot give advice and
is not sitting as a Judge, the parties often forget those words
and treat the mediation as their day in Court. This means of course
that the mediator has to exercise a certain amount of control
in cases where parties get extremely emotionally disturbed, but
sometimes allowing the parties to ventilate helps to achieve a
settlement.
(c) The Judge often sees the parties before
the mediation commences introducing the parties to the mediator.
The Judge will also often see the parties after the mediation
has been concluded and make any consequential order or directions
if the mediation has been unsuccessful. This of course vests the
process with considerable authority and it is thought, for instance,
that where the Judge does not take part as set out above there
is some anecdotal evidence to suggest that the number of successful
mediations may be reduced by about 5%.
(d) Because of the shortness of time it is
not unusual for both parties to be in the room at the same time
for almost the entire mediation but see below.
Procedure
The parties are in the Exeter, Barnstaple and
Torbay schemes provided with an explanatory leaflet at the same
time as they receive notification of the mediation appointment.
That leaflet has been criticised as being difficult to understand
or inadequate and is constantly under review. Before the mediation
the parties are asked to sign a consent to mediation form. There
is very little time available to go into an in depth explanation
if one is to keep anywhere near the Court timetable.
If the mediation is successful the mediator
will draw up a memorandum of the terms of settlement and the accompany
the parties back before the Judge and the Judge will then satisfy
himself or herself that the parties have reached the agreement
drafted by the mediator and will then approve an order based on
that agreement. The agreement of the parties should not necessarily
be confined to matters which the Court can order at the conclusion
of a contested trial and it is quite often that one party will
make a concession to another, perhaps by taking certain actions
within an agreed time limit and that settlement and payment, if
appropriate, will flow from those actions eg the claimant will
give the defendant a credit note against goods returned, a voucher
for a service which will be rendered by the claimant and which
would otherwise cause a fee to be raised, the carrying out of
certain works by the claimant which are outside the terms of the
contract but which have been agreed as a makeweight, and payment
or withdrawal in terms which are agreed will then take place.
In the Exeter model the mediators are required,
if the mediation has been unsuccessful, to advise the parties
as to what the Court will expect by way of documentation (all
correspondence in date order, numbered and in a binder, experts
reports, signed witness statements to be exchanged, estimates
for the completion of work not done or the rectification of work
allegedly done badly etc) so that when the parties go back before
the Judge they have a better idea of what is expected of them,
a clearer idea of the issues (which may have been substantially
narrowed) and therefore the trial time is likely to be shorter.
PRACTICE
In an ideal situation there will be three rooms
available, one for the mediator and one for each party but that
will often not be the case.
The mediator will have arrived at the Court
probably an hour before the mediation or the start of the mediations
if there is a list, and will have had an opportunity of reading
the Court file and possibly making short notes. This means at
the very least that the mediator has a rough idea of the issues,
the amount involved and possibly of any side issues which may
help to resolve matters or may stand in the way of a settlement.
Assuming as will normally be the case that there
is one room, namely the mediator's room and the Court waiting
room, the mediator should see each party separately briefly, introduce
himself or herself, remind the party that he or she is not a Judge,
that the mediation proceedings are completely confidential, that
he or she cannot give advice to the parties during the mediation,
that the discussions are all entirely without prejudice and cannot
be relied upon if the proceedings have to continue and the mediator
should then ask each party individually:
(a) whether they are prepared to go through
the mediation process of that basis
(b) whether they wish to be seen separately
or whether they are content to be in the same room as the other
party
If the parties agree to the mediation but do
not agree to share the same room then the mediator will have to
see the parties individually. Except in exceptional cases it has
been found that most parties are prepared to share the same space
indeed being able to state ones case in the presence of the other
party can be an important part of the process.
Assuming, for the purposes of this guidance,
the mediator has seen both the parties separately and they have
both agreed to go through the mediation process and are prepared
to share the same room, the mediator should then invite them into
his or her room and repeat the guidance given to each of them.
He or she should then get both parties to sign the agreement to
mediate. If the parties are to be seen separately they must of
course sign the agreement also.
The initial procedure should take no more than
about five minutes but it is essential that it is thoroughly complied
with.
Mediators may first find it remarkable that
comparatively small issues can raise huge amounts of emotion which
will need to be carefully dealt with.
The mediator tries to assess not only the issues
but also the depth of emotion by summarising the claimants case
as he or she understands it and inviting the claimant to comment
and then doing the same with the defendant. The procedure can
very often result in a controlled discussion between the parties
where issues can emerge which the mediator can help the parties
explore by asking questions, eg do I understand it that the claimant
having left some materials at the defendants property, the defendant
then used the materials and had some benefit from them and/or
has some materials left over which could be returned to the claimant
and which it is possible the claimant might be able to use on
other contracts and given allowance for etc etc.
If at all possible the mediator should try and
put the parties at their ease but without seeming to make light
of either a claim or defence.
In facilitating discussions between the parties
the mediator is trying to ascertain each party's position each
party's interest and each party's needs. From the needs point
of view it is not at all uncommon for small claims parties to
have found themselves in a confusing and rather frightening procedure
over which they feel they have no control, that far from the matter
being dealt with by a Judge simply agreeing with them they find
there is work which needs to be done by way of proof for which
they are sometimes not prepared, that there are usually two sides
to each question and therefore there is no guarantee that a Court
is going to find for one or the other of them, that they are losing
money and time and may well have consulted Solicitors whose fees
they cannot recover because it is a Small Claims Court etc etc.
The mediator can also ask how much it has cost
each party to get to the stage where they are today and how much
they estimate it is likely to cost them to get through trial including
the costs of any legal representative or legal advice for which
they will not recover the expense.
An opening question could be "what do you
want to get out of today eg is it money, is it an apology, is
it a combination of both, is it for one party to make an acknowledgement
of some sort".
The technique of concentrating the parties'
minds by questions from the mediator is one which is frequently
applied the "I can see where you are coming from but do you
think that a Court might look at it differently?"
Later in the mediation the mediator needs to
establish what is each party's top/bottom line ie is there any
flexibility?
There is not best practice in the small claims
mediations at the moment and different mediators will undoubtedly
have different techniques. The temptation which all mediators
must experience from time to time is to try and intervene but
this must be strenuously resisted. If the parties are prepared
to move from fixed positions eg the claimant is prepared to accept
less than the full amount of his claim and/or the defendant is
prepared to make a greater payment than has previously been indicated,
it may be appropriate to invite each party to write down their
"bottom line" and to do it without the other party seeing.
It is surprising how often when this technique is employed the
difference between the parties is manifestly not worth fighting
over and some further slight movement from each party can be encouraged
but great care needs to be taken that the mediator is not seen
to be favouring either party. Perhaps the furthest that the mediator
can go is to say "the difference between you two is now blank
pounds, can you suggest how that might be bridged?"
The parties need to be reminded that time is
short and because of the shortness of time of course the mediator
has to keep fairly tight control of the latitude that he allows
each party to make their respective points. Often once the points
have been made by each party and in the presence of the other,
the parties will often show a willingness to settle.
Assuming that a settlement has not been achieved
the mediator is then required in the Exeter scheme to advise the
parties as to the future requirements of the Court and there are
times when one or both parties will realise that further work
and expense is going to be required from them, experts are going
to be needed etc and will then indicate that perhaps some further
movement is possible and settlement can be achieved. Where parties
are particularly obdurate the writer has been known to say that
it is quite plain that settlement cannot be achieved and invite
the parties to join him and go back and tell the Judge that. This
sometimes results in one party or the other who has been holding
out against further movement showing a preparedness to move further
and with agreement the mediation can resume and in a substantial
proportion of cases will result in there being agreement.
At the end of the mediation if it has been successful
the mediator should write down the terms of the agreement arrived
at by the parties and get both of them to sign that agreement.
The mediator then countersigns it and accompanies the parties
back before the Judge where the mediator will explain to the Judge
the terms which have been agreed and the Judge will then make
an appropriate order.
If mediation has not been successful the mediator
should tell the Judge that the parties cannot agree and the Judge
then retakes control of the proceedings and gives directions for
statements etc and for the trial itself.
SUMMARY
The whole procedure is extremely dynamic and
a quick reading of the papers is not going to equip the mediator
to understand the issues that the parties often want to be addressed.
Emotions can run extremely high but once then have been given
the opportunity to be ventilated and each party understands the
other party's point of view settlements are often achieved.
Imaginative settlements can it is suggested
by floated by the mediator and can result in agreements being
achieved where both parties had fixed positions which were irreconcilable
but neither party wished to continue the process upon which they
had embarked and needed some movement from the other party before
they felt able to agree a solution.
Concerns have been expressed by the authorities
that because of the time pressures, because of the fact that the
parties are very often confused, apprehensive and unsure of their
positions, litigants may find themselves agreeing to solutions
which they afterwards regret but provided that the mediator has
undertaken his or her task in a neutral non judgmental manner
and that the parties have come to a solution of their own volition
possibly with the help of the mediator asking questions designed
to assist the parties to view their respective positions and possible
outcomes from a different view point, it does not seem to the
writer at least that time pressures, the lack of caucusing or
the joint mediation sessions invalidate the procedure.
It is noteworthy that even where mediations
have not been successful parties have expressed gratitude for
the efforts of the mediator, it is not unusual for both parties
to shake the mediator's hand on the conclusion of the mediation
whether successful or not and the very high level of satisfaction
even in cases which do not settle indicates that the mediation
process as conducted in the Exeter group of Courts is regarded
by litigants as helpful and constructive.
It is known that the Department of Constitutional
Affairs regard the process as being helpful as it results in cases
being diverted from the Judges and successful in so far as the
overall settlement rates of something in the order of 60% average
(which compares extremely favourably with three hour time limited
mediations in the same Court) the process is a valuable service
and might well ultimately form part of recognised Court procedures
in England and Wales.
Jeremy Ferguson
Devon and Exeter Law Society
September 2005
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