Stephen Gold on mediators: If the animosity is intense, they may prefer to avoid damage to the furniture by keeping you apart, running messages from one room to another
Stephen Gold is a retired judge and author who has written popular series for This is Money on how to be a successful executor, writing a will, bankruptcy and consumer rights.
In part one of his new guide on the cost of taking legal action he explained court fees and in part two he looked at ways to cut bills.
Today, he turns to how to settle a case before it even reaches court if you can, and the way mediation works in civil and family cases.
As ugly and unreasonable as you find your opponent, try to settle with them.
You can do that before starting a court case. Or you can do it after the case has started and at any point before the judge has opened their mouth to deliver judgment.
It is a fantasy to think that inviting your opponent in for a cuppa and a slice of fruit cake will achieve a settlement although you can always try.
More likely to be worth a shot is one of a handful of different forms of resolution which are independent of the court and the main one is mediation.
That is the process by which someone trained in getting parties at war to settle their differences applies their skills to you and your opponent and bangs your heads together, albeit ever so lightly to ensure no skull fractures.
The mediator could see you separately and then together.
If the animosity between you is intense, they may prefer to avoid damage to the furniture by keeping you apart under the same roof, running messages from one room to another.
Alternatively, the mediation could be conducted remotely.
They could try and rubbish the case being put forward by both of you so as to extract a bit of compromise here and a bit of compromise there until – eureka, an agreement!
They will have their individual styles. One mediator I know attempts to puts his parties at ease and in a conciliatory mood by serving them up coffees with smoked salmon bagels before uttering a word about the dispute.
Can you be forced into mediation? Thou shalt attempt to settle
Two months ago three senior judges in the Court of Appeal, spearheaded by Lady Chief Justice Carr, ruled that in a civil case parties could be compelled to enter into dispute resolution, including mediation.
For 19 years it had been supposed that compulsion was not possible.
That was as a result of what had been said by other judges in another Court of Appeal case.
‘Forget that. It was by the way and isn’t binding on us.’ That’s effectively what was recently held, and it will have a massive impact.
You can actually be ordered to go off and mediate, whether you like it or not but, of course, only in a case that is already before the court.
Apart from county court small claims, that will not happen every time one or all of the parties protest that the chances of reaching an agreement are as strong as Crossroads returning to the screens.
Mediation and any directions about it which are given by the court must not impair the parties’ right to have the case fully heard by a judge if settlement proves impossible.
And compulsion must be a proportionate thing to impose bearing in mind what should be the aim of everyone to see the dispute settled fairly, quickly and at reasonable cost.
Mediation in county court cases
I expect the Court of Appeal’s decision to operate differently in county court small claims.
There, contested cases are taking far too long to be dealt with and often one of the parties is intent on having their day in court and giving the other side a right going-over in cross-examination after they have cursed them in the waiting room.
Compulsory mediation could easily become the default position. That, however, runs the risk of reducing the band of small claims mediators to their knees.
Mediation in small claims operates differently from other cases. You don’t have to find the mediator: they are found for you. And the service is free.
Although the team of mediators work for the courts, they act independently. They speak to each side separately by telephone, without having read any of the case papers, and sound them out about a compromise.
Mediation: ‘Someone trained in getting parties at war to settle their differences applies their skills to you and your opponent’
They switch from one side to the other and so there is no direct interaction (or swearing) between the parties.
What is said in the course of the mediation will not reach the ears of the judge if it is unsuccessful and a full hearing proceeds.
If you wish, you can appoint somebody else to participate in the mediation on your behalf.
Drumroll for a confession. After I had retired, my brother appointed me to represent him on a small claims mediation in his case against an airline.
There was nothing improper about this. I found the mediator over keen to get a settlement agreed and unaccepting on a couple of legal points I put to her without at any time disclosing my background.
The airline was intransigent over its defence and the best they came up with was an offer of a few million airmails which translated into about five new pence.
But to be fair, the settlement rate from these small claims mediations is relatively high. I fancy that too many litigants give too much away with mediator encouragement.
What is always possible when the mediation closes without an agreement is for you to go back to the opposition and have your own second crack at settlement, building on what strong points you were able to get over through the mediator.
When mediation does not come free, what’s the damage? The Civil Mediation Council maintains a list of professional mediators who can be used at a fixed fee which will depend on how much is in dispute and the duration of the mediation session.
For example, where anything between £15,000 and £50,000 is involved, you are looking at £445 plus VAT for each side in return for a four hour session.
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There are other organisations which can offer mediation services such as the Centre for Effective Resolution (online at £900 plus vat, usually shared equally) and the London Chamber of Arbitration and Mediation (remote or in person at £250 plus VAT for each side for half a day or £350 plus vat for each side for a full day).
What if you refuse mediation
Let’s take this scenario. The court orders you and your opponent to enter into mediation but you refuse. Will you be let off with a clip round the ear?
Far worse, unless you have a brilliant excuse for the refusal. The case will be halted for the mediation to take place.
What then happens if you fail to cooperate within a specified or reasonable period depends on your status in the proceedings.
If you are the claimant, the court is likely to throw out the case. If you are the defendant, you are likely to be debarred from contesting the case any longer, with a court judgment being given in favour of the claimant.
Whichever party has defaulted can expect to have to pick up the legal costs and expenses of the other party.
What about mediation in family cases?
The Court of Appeal’s recent decision in civil cases does not automatically extend to family cases and the Government has just announced that it does not intend to legislate to make mediation compulsory in this area.
That doesn’t mean that a judge somewhere, sometime, who is exasperated by, say, a divorcing couple’s refusal to talk to each other, in or out of mediation, will not compel it.
We shall wait and see. What is certain is that family legislation currently stops short of mediation compulsion while, nevertheless, actively encouraging it.
And the encouragement is looking like turning into arm twisting with legislative changes coming into force on 29 April 2024.
Ever heard of a MIAM? No. I am not surprised. It stands for Mediation and Assessment Meeting and is something you have to go along with before you can start most family cases involving the welfare of a child or finances on relationship breakdown.
It provides you with information about how a case might be settled through mediation instead of a court punch up and the pros and cons.
You can go along separately or with the other party and it is possible to participate remotely.
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The cost will be in the region of £95 for a session likely to last around 45 minutes but if either of you on a low income qualifies for legal aid, it will be free for both.
If mediation can avoid the acrimony and expense of court proceedings by achieving a settlement or, at least, a reduction in the issues, that has to be a good thing.
Family mediation costs money, though. Different mediators charge different fees. For a 90-minute session, the norm is around £150 for each party.
But how many sessions might it take?! A Government scheme which has so far helped over 24,600 couples resolve their issues without resorting to court, currently makes available a contribution of £500 for a couple towards mediation costs.
You get a voucher collected by the mediator and not the cash and so cannot accept it and spend the money on a night out in Macclesfield.
A MIAM is not required as a pre-requisite for bringing a divorce, civil partnership dissolution or nullity case which is a pity. There aren’t enough mediators around to cope!
How will family mediation change from this April
There are some exceptions to the requirement that you must participate in a MIAM before starting a family court case.
Among them are that you are a victim of domestic abuse, there are child protection concerns or the case is urgent.
Changes coming in on 29 April include a tightening up of the exceptions: in particular, another exception which lets you off if you do not have the contact details of the other party.
In relation to the conduct of the MIAM, the mediator will now have to engage in some triaging by considering with you the benefits of other forms of out-of-court dispute resolution.
Some of them might not relish this with the risk they might lose the opportunity of earning some dosh through mediation if you opt for another resolution avenue.
What are the other avenues? In money and property disputes, my favourite would be a private financial dispute resolution appointment at which the person conducting it will give an indication on how they assess the case should settle and encourage a settlement along those lines.
When you go through the court, you get one of these anyway but before a judge. This one is before a specialist lawyer who the parties can pick from a pool of barristers and solicitors who advertise their availability to accept this role.
At a price? Yes. How much? You ought to be able to negotiate a fee of around £2,000 plus VAT but it very much depends on the seniority of the lawyer.
Solicitors tend to charge less then barristers. You could both organise this private appointment without court proceedings being in progress or during proceedings but before what could prove to be a pricy and lengthy final hearing.
Why favour the private appointment over the appointment available with a judge? Because with the judge, it could take nine months plus to come about by which time the costs cash register will have been rung up many times.
Another alternative to mediation is a process called collaborative law. My least favourite.
Each side appoints a lawyer to try and thrash out an agreement. It will involve four-way meetings and probably meetings between the lawyers beforehand.
If the process fails, then each lawyer will drop out of the picture and new ones would have to be appointed for the court battle.
The process can be costly, and the money spent on it goes down the drain if no agreement is reached. In one case I tried as a judge, the parties had expended over £18,000 on the process by which time they had agreed… nothing.
Another change coming in on 29 April relates to the court’s duty to consider dispute resolution with the parties once a family case has been started.
This duty is being fortified by a new power to order a party to come up with a written statement setting out their views on dispute resolution.
The court can take the initiative over this, or one party faced with a partner who they reckon is being unreasonable in resisting dispute resolution can apply to the judge to order a statement and give suitable direction on the topic.
And if outright refusal to go along with out-of-court-resolution persists, what then?
That refusal can be taken into account at the end of the case – as can a party who refused to attend a MIAM before the case started – when the court considers whether the refusing party should pay or contribute towards the other side’s legal costs.
IN PART FOUR… Stephen Gold explores further strategies to reach a settlement.
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