When to Mediate - New Court Rules
Civil / General Mediation
Civil Mediation – this means all types of mediation other than family mediation. Civil litigation is governed by the Civil Procedure Rules (CPR) which were changed for all court applications issued after 1st April 2013 by the Jackson Reforms. Historically, if one party wanted to mediate but the other didn't, mediation didn't happen or occurred too late. Commonly, the biggest issue to be mediated in civil cases is the legal costs, which often dwarf the value of the dispute between the parties. The Jackson reforms are supposed to stop this by encouraging early mediation.
Jackson Reforms 1 April 2013 - Jackson Changes Everything
The majority of cases settle before trial and the sooner they settle the better for the parties. Refusal to consider or co-operate with ADR (this usually means mediation) can result in serious cost sanctions, even if you win your case. Judges can:-
Include orders with regard to mediation in their directions and when managing cases
Give specific guidance on a case with warnings about costs penalties if it is not followed
If a party has requested mediation the other party may have to file a witness statement explaining why they won’t mediate
Importantly - ADR mediating can result in adverse costs orders even if you win your case!
The Overriding Objective
The judges always have to bear in mind how cases can be dealt with justly and at proportion cost, expeditiously and fairly and they must consider the potential use of ADR as well how to progress litigation. Allocating an appropriate share of the court’s resources to cases will often raise the issue of mediation and this is encouraged as early as possible in the case.
Costs and Court Fees
One of the main drivers for the changes in the rules is trying to prevent court costs escalating out of all proportion to the value of the original issues. People engaged in litigation often fear they are stuck on a runaway train with no exit routes – that is not true - as mediation provides an affordable, fast way to settle.
Court fees have increased massively and are a major consideration in most cases.
The Parties Hate Each Other Doesn’t The Antagonism Make Mediation Unsuitable?
Very occasionally it feels more important to people to try to fight to win than to sort things out, but this is rare. Mediators help people focus on getting results without feeling they are backing down or giving in.
'Justice' is Mostly Unaffordable
The original problem is the disagreement which is generating the litigation – this often is fuelled by a passionate desire to win with a corresponding fear of losing (because things do not always turn out the way you expect). Often people feel incensed about something and want “justice” to try and put it right. However, “justice” comes at such a price, takes so long and can be so unpredictable, that at some stage most people decide to cut their losses. Very few cases actually go to trial these days as litigants are encouraged to mediate as soon as possible and avoiding mediation is a high risk strategy, which can have serious adverse costs consequences.