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.
