MoJ Consultation on Mediation
In June this year Sam Knight of Temple Legal wrote that ADR was fast, efficient and “seemingly here to stay.” It seems that Sam has an inside track to the Ministry of Justice as a Consultation on Mediation was issued in July. Lord Bellamy KC wrote in the Introduction that “We must continue to forge the way forwards by cementing mediation as an essential part of the modern justice system.”
The Consultation, which closed on 4th October, sought views on two areas. The first was very much about the processes needed to support an extension within the Small Claims Track for mandatory mediation of disputes by HMCTS staff acting as mediators. Some 11,500 cases have settled under the current voluntary scheme and the MoJ anticipates that up to 20,000 cases under a mandatory referral to mediation will be “diverted” thereby freeing up of 7000 judicial sitting days.
The Consultation also indicated that the Government is considering whether a requirement to mediate should be extended beyond small claims. The quote above of Lord Bellamy does suggest that the outcome is a little more than “pencilled in” in the affirmative. Part II of the Consultation therefore seeks views on how consumers of mediation services should be protected and the right approach to strengthening oversight.
At the moment there is no formal regulatory requirement imposed on a mediator. Quality is assured by the consumer’s experience of dealing with an individual mediator; by a mediator’s accreditation to organisations such as the Civil Mediation Council (CMC) or the panel standards of a mediation provider. Many civil / commercial mediators will have undertaken CMC approved training courses, have minimum insurance cover, have a complaints process and undertake ongoing professional development – but none of this is mandatory.
The MoJ asked whether a formal regulatory structure should be set up or whether the existing accreditation regime could or should be strengthened. The latter course could be achieved by requiring mediators appointed as part of a Court process to be CMC accredited or perhaps to have some “kite mark” accreditation or that the mediation provider subscribes to certain minimum standards.
Increased oversight whether by regulation or an accreditation requirement will have implications for clients. Quality Assurance for the end user would be provided. A more efficient instruction process will arise where one of the qualifying questions on instruction is whether the mediator is accredited to Government prescribed standards. (The CMC is offering to maintain a list of all accredited mediators - the link to its response is here). Both of these points will carry more weight when the Fixed Fee regime is extended to include Intermediate cases of up to £100,000 in value in April 2023. Fixed costs allowances will demand efficiencies as the Courts require mediation as part of the litigation process. The question for practitioners is what any enhanced regime for mediators should look like. Are the present voluntary standards enough? Is a regulator needed? What would be the cost of a regulatory framework? Should accreditation be required? By one single organisation or by a number? How should standards be enhanced and monitored? Should mediators have insurance cover? And how much? And to be determined by who? Who should deal with complaints? The mediation provider? The accreditation body? Are there issues of conflict of interest? These, and others, are important and the devil may yet rest in the detail.
Responses have been submitted and the MoJ will need to provide its response and outline the policy that it wishes to follow. There have been many recent papers and Judicial speeches confirming support for mediation and other dispute resolution options. With considerable pressure on the Courts and the anticipated saving in judicial sitting days it seems very likely that the MoJ will extend the scope and reach of mediation with changes in April 2023 clearly in view.
I am grateful to Temple Legal for publishing the above article in "Clinical Thinking" in October 2022. A link to that and other Temple Legal Newsletters is here.