Tuesday, 10 January 2012

Speak softly but carry a big stick

This really works, and makes sense.

It seems a long time ago that the barrister friend who trained me said that mediation would be coming to the small claims track.  Perhaps it did not happen as quickly as one might have liked but, hey, - better late than never.

I would like to see consistency amongst courts.  It’s not a big deal, but here is a comparison.

A couple of months ago we had allocation directions from Bournemouth in a case which kicked off on the fast track but quickly moved downstairs as the defendants admitted and paid about 90% of the claim.

We had a long list of directions on allocation, one of which was that we should mediate – and if we didn’t, that failure might be considered “unreasonable conduct” within the meaning of CPR 27.14, opening up potential liability to a costs order.

I have no problem with that.  We were always willing to mediate, as was the defendant.  We did it within a month and reached a very sensible and satisfactory conclusion.

Recently I had a short and less detailed allocation notice from the Yeovil County Court.  The approach is slightly different.

We were told in this case that the judge thinks it might be suitable for mediation and if we would like to give it a try then we ought to contact the Mediation Service.

That’s it, basically.  We went for it because in most cases it makes sense. The defendant didn’t but there was no apparent pressure on him to do so. Trial looms.

There was a further contrast with a case in the same court a year ago where we, for claimant, said we would be prepared to mediate and the defendants said they would not.  In that instance another district judge issued a direction requiring the defendants to write and give reasons for their refusal.

Almost inevitably we did mediate the case and settled - not on the day but shortly afterwards.

Perhaps we should just look upon these (varying) schemes currently as Beta versions in the characteristically rushed, yet collaborative, way in which we make rules and build procedures in the present day.

But so many combatants will only listen to the softly spoken word if they see someone else in the arena carrying a big stick.