#GuiseOnJustice – New Practice Direction extends mediation to thousands more cases from 24 May 2021 by Tony Guise

What better time to announce a dramatic extension of mediation to thousands more civil cases in England and Wales (E&W) than 4.30pm on a Friday?

That was the time on 7 May 2021 when the Judiciary decided it would publish the 130th update to the Civil Procedure Rules, 1999.  This extends opt-out mediation to thousands more cases in the Small Claims Track (for claims worth up to £10,000) which are issued using the Online Civil Money Claims portal (OCMC).  The changes were introduced by way of amendments to Practice Direction (PD) 51R.

This dramatic extension to the use of ADR has been introduced by the MR in less than four months in office.  We can expect much more Rolling Reform as the months and years pass during his tenure as MR.

WHAT IS OCMC?

This is a Cloud based platform to enable unrepresented claimants to issue civil money claims up to £10,000 in value against unrepresented defendants.  OCMC went live in March 2018 as a Pilot.  As at November 2020 it had issued 174,000 cases.  Her Majesty’s Courts and Tribunals Service (HMCTS) report a user satisfaction rate of 91%.

In September 2019 an opt-out ADR process started for claims up to £300 in value.  After a defence is filed parties would be required to mediate unless one party chose to opt-out.

OCMC is undoubtedly a success story for HMCTS.  There remain limitations and some of those are:

• The platform does not yet offer an end-to-end claim management process
• After a Defence is received the claim falls into the paper-based system
• There is no inter-operability to enable, for example, ADR to be managed online

Mediation is provided by about 28 full-time and part-time HMCTS staff in the Small Claims Mediation Service (SCMS).  They offer an hour long mediation by telephone free of charge and free of the Court file, which they do not see.  Anecdotal reports indicate SCMS amounts to shuttle mediation to encourage parties to reach a compromise over the amount of money being claimed.  A bidding process conducted by that stalwart technology of the 20th century, the phone.  Opting out of ADR by one party opt-outs the entire case and, as at November 2020, a concerning 67.5% of parties were opting-out.

The Judicial ADR Liaison Working Group (set up following the CJC ADR Final Report) held its third meeting in April 2020 and heard that there are no plans to manage these mediations online.  However at that stage the scheme was limited to claim values up to £300.  There was an indication that an increase in scope was in contemplation – to claim values of up to £1,000.  Under the recent PD that extension is to all claims, i.e. up to £10,000 in value.  This is the Vos Effect.

WHAT DOES THE PD CHANGE?

With barely two weeks’ notice, from 11 a.m. on 24 May 2021 thousands more cases will be caught by the opt-out mediation scheme.  A rough estimate of the numbers is 24,000 cases and based on the empirical evidence to November 2020 7,200 will mediate via the 28 part-time and fill-time HMCTS mediators.

This was the low-hanging fruit of the project to integrate ADR within the civil justice system.  No lawyers are involved in this sector of the system and this area offers the perfect test-bed to explore how much more mediation can be delivered by the Courts’ existing ADR infrastructure.

The PD extends the life of OCMC.  Launched in March 2018 it began (and remains) a pilot which was due to end in November 2021, the PD extends the pilot until 30 November 2023.

WHAT’S NEXT?

The MR has tasked the Judicial ADR Liaison Working Group with considering the thorny topic of compulsory mediation.  What this means is unclear as the terms of reference have not been published.  Perhaps transparency is an issue to be addressed as Rolling Reform gathers experience and pace.  Yet a sense of perspective should be maintained.

In February 2021 the Civil Court of the City of New York launched its small claims ODR service in Manhattan for claims up to $10,000.  This service provides a pluralistic approach to claim resolution beginning with an online bidding process followed by mediation and the last resort being a Court trial.  It is an end-to-end service with ADR fully integrated.

Whilst there may be concerns about this dramatic extension of Court sponsored ADR we really have some way to go before we can describe what is happening in E&W as radical.

Nevertheless the PD is a move in the right direction and a step along a journey where progress can only accelerate.