There have been some recent court decisions that warn of the cost consequences of a failure to consider mediation. My views on mediation are that the process has its benefits in the right situation. What these recent decisions seem to indicate is that we are approaching a situation where mediation is virtually compulsory.
I went to a very intreresting seminar in March 2014 given by Professor Dominic Regan. He told us lawyers of the risks of not stating in our letters of claim the willingness to consider Alternative Dispute Resolution (ADR). Lawyers have a professional duty to advise clients about other means of resolving disputes and warning them of the possible costs sanctions if they unreasonably refuse. I distinctly remember Professor Regan saying that the key thing to remember is that ADR comes in a variety of forms, with mediation being one of the important alternatives especially in larger cases. I certainly believe that alternatives to court action should be considered. However, the sometimes misguided assumption that mediation is the cure for all disputes is unhelpful.
I think that parties to a dispute, and their lawyers, need to be creative about methods to resolve a dispute. Mediation might be the right method but don’t forget the other options. From my own soundings, small businesses might be more in favour of some form of adjudication that quicky and cheaply determines the issues in question. To this end, I am offering a type of adjudication service. The parties would sign an agreement that they are forgoing using the court service and appointing me to consider their dispute based on paper submission and a short meeting at which both sides can put forward their case. Although I would get the parties to agree to be bound by the determination, reality tells me that people renage on their committments. In such a case, if you then have to issue court action to enforce such an agreement, the fact that the defaulting party has refused to honour the agreement is not going to make them look good in the eyes of the court even if they are able to argue it should be overturned, which is debatable.
The service I am considering offering is relatively low cost and aimed at disputes that are in the range of £5,000 to £10,000 (the upper bracket of the small claims limit). It is this bracket where I believe the service would be cost effective, especially in light of the recent court fee rises. I would be interested to hear from anyone with suggestions on such a process or if I could possibly help resolve a dispute.
My new book, “How to make successful small claims. A guide to court procedure and alternative dispute resolution”, has just been published and contains information about the use of ADR.
Anthony Reeves
11 June 2014
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