Mandatory Small Claims Mediation (2024 Rules)

From 22 May 2024, mediation became mandatory for most defended small claims in England and Wales. Previously, parties had to opt in to the Small Claims Mediation Service. Now:

The new rules: - Mediation is automatic for defended small claims under £10,000 - Both parties must participate in at least one mediation session - Mediation is conducted by telephone (usually 1 hour) - The service is free - included in your court fee - Unreasonable refusal to engage can lead to cost penalties

Why the change: - Around 60% of mediations result in settlement - Mediation is less stressful than a court hearing - It is faster and saves court resources - Settlements are often better for both parties

The Small Claims Mediation Service operates as follows:

1. Referral: Once both parties have filed their documents, the case is automatically referred to mediation (unless exempt).

2. Contact: HMCTS will contact both parties to arrange a mediation appointment. This is usually by telephone.

3. The session: - A trained mediator facilitates the discussion - Sessions last up to 1 hour - The mediator speaks to each party separately first - Then facilitates direct discussion if both agree - Everything said is confidential

4. Outcomes: - Settlement reached - case closed - Partial settlement - remaining issues go to hearing - No settlement - case proceeds to hearing

The mediator does not decide who is right or wrong - they help you find a solution.

Not all cases go through mandatory mediation:

Exempt cases: - Housing disrepair claims - Landlord possession claims - Claims where one party is a litigant in person with a disability that prevents telephone mediation - Cases where the court considers mediation inappropriate - Claims where the defendant does not respond (default judgment)

Requesting an exemption: If you believe your case should be exempt, you can apply to the court explaining why. Common reasons include: - Urgent matters requiring immediate court intervention - Allegations of fraud where mediation would be futile - Cases involving protected parties

The court decides whether to grant an exemption.

To make the most of mediation:

Before the session: - Review your case documents - Know your best and worst case outcomes - Decide what you would accept as settlement - Consider what the other party might want - Have your evidence to hand (though you may not need to share it)

During mediation: - Be open-minded - listen to the other perspective - Stay calm and professional - Focus on solutions, not blame - Be honest about what you would accept - Ask questions to understand their position

What to avoid: - Do not refuse to engage in good faith - Do not make unrealistic demands - Do not reveal your absolute bottom line too early - Do not be aggressive or confrontational

If you reach agreement: - The mediator helps you put the agreement in writing - This becomes a binding contract - If the other party breaks the agreement, you can go back to court - You usually receive the settlement document by email

If mediation fails: - Your case proceeds to a hearing as normal - Nothing said in mediation can be used in court - The mediator will not tell the judge what happened - There is no penalty for unsuccessful mediation (only for unreasonable refusal)

Partial success: - You can agree on some issues and contest others - This narrows what the judge needs to decide - It can make the hearing shorter and simpler