Mediation proposals can help reduce court backlogs - Graeme Boyack

I have been reading about a planned introduction of mediation in the English and Welsh courts in Small Claims (under £10,000) cases.

Lord Bellamy QC, author of the Ministry of Justice Consultation, states: “The time has come for it to adapt to the needs and priorities of the modern age. This involves not only facilitating swift, online access to the courts, but also providing the encouragement and opportunity for people to resolve their disputes consensually wherever possible. Where the civil justice system can support people to do this, helping them to avoid the time, cost, and stress of an adversarial court battle, I believe it has a duty to do so.”

Most people would not necessarily agree with the statement above however I have been thinking about this a lot recently and I am coming more to the view that it is a very good fit and when compared to other ways of resolving disputes disappointingly underused.

A key feature of Scottish Mediation’s proposals is that there should be coordinated access to mediation available in every Sheriffdom in Scotland.

In the consultation, views are sought on the automatic referral to mediation, possible exemptions, and the regulatory framework for those providing mediation services.

In Scotland we have been developing proposals that would be similar in a number of respects and whilst the pace of that development is sometimes frustratingly slow, I believe that we are well placed to make significant changes.

In 2019 Scottish Mediation published Bringing Mediation into the Mainstream. It was the result of a significant amount of work and drew on an expert group from across the wider civil justice system. Since then we have been working with the Scottish Government on how best to implement its recommendations and very much welcomed the current government’s commitment to the development of mediation when elected to office in 2021.

A key feature of Scottish Mediation’s proposals in Scotland is that there should be coordinated access to mediation available in every Sheriffdom in Scotland. Currently people’s ability to access mediation is very much based on where they live.

Alongside the ability to access mediation, people should also be able to access advice about their case and the best way for them to proceed. Robust standards for mediators have been developed and should things go wrong a new complaints process is being developed.

In our plan people would be able to access mediation at the point they submit their case to the court and for Simple Procedure cases they would not need to pay any more than the registration fee. For other cases such as ordinary cause we would make mediation available through panels of mediators offering fixed price services helping to ensure that resolving a case doesn’t cost more than the value being claimed.

During the peak of the Covid pandemic two big things happened. The first was that all mediation moved online and to many people’s surprise worked very effectively. The second was that a large backlog of cases built up in the courts.

Our proposals would seek to make online the preferred method of mediation (with arrangements for those unable to do so) and in doing so this would help reduce the backlog and for future help get the cases that are best heard in court in a timely manner.

I have been in a number of meetings with English and Welsh colleagues over the past few weeks in order to better understand what is proposed for England and Wales. In those discussions I have become more convinced about the proposals we’ve developed in Scotland and why they would not only work well, but why they would be a significant improvement on what we have just now. As someone else said recently, it’s now time to Deliver, Deliver, Deliver.

Graham Boyack, Director, Scottish Mediation

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