Increasing the use of Mediation in the Civil Justice System consultation response

In October 2022, JUSTICE responded to the Ministry of Justice consultation on increasing the use of mediation in the civil justice system. The terms of the consultation were broad in scope and ambition, as it sought views on automatically referring for mediation, all small claims (generally understood to be those under £10,000) across sectors and areas of dispute.

JUSTICE’s response drew heavily on our 2021 consultation on Dispute Resolution in England and Wales as well as our 2020 report, Solving Housing Disputes. In light of this, our response was focused on small claims cases relating to housing disputes only.

In principle, our consultation response supported the proposals aimed at increasing the use of Dispute Resolution (DR) in relation to housing disputes. This is because DR that forms part of a holistic, problem-solving approach can redress the power imbalance that exists between tenants and landlords, particularly in circumstances where the former is represented as a litigant in person. This position is predicated on our understanding that if offered at an early enough stage, with the right support and assistance, DR can be far more effective in identifying the underlying causes of a dispute, sustaining the relationship between parties and bringing about lasting solutions without the distress often associated with the traditional adversarial approach.

However, JUSTICE has several concerns about the process of expanding DR and automatically referring small claims to mediation. Namely, in order for dispute resolution to be effective and improve outcomes for the most vulnerable parties, JUSTICE believes it is imperative that the necessary supporting infrastructure is in place to advise and protect parties.

An outline of these recommended support features is as follows:

  1. There must be a mechanism to allow for exemptions to automatic referral to mediation on a case-by-case basis that considers the personal characteristics of the party. While automatic mediation should be integrated into the formal process rather than provided as an adjacent pathway, it must be made clear to parties that mediation is part of the court process, not a replacement.
  2. The DR process should make extensive use of open-ended questions on forms throughout the process to ensure that mediators have a clear understanding of the challenges and circumstances facing the parties.
  3. Parties should have access to legal assistance from the start of the process, and throughout, to help guide parties and to ensure they fully understand their legal rights and obligations.
  4. The mediation process should provide for the discretionary, rather than automatic, application of sanctions as a consequence for non-compliance to ensure that they are appropriate. Given the civil justice system’s poor track record in meeting the needs of vulnerable people, the ministry of justice should work in tandem with frontline organizations to ensure that parties are signposted to available services. JUSTICE believes that at in order to protect parties, increase efficiency and improve access to justice for vulnerable individuals, the system of accreditation for mediators should be revisited with a view to expanding and reflecting the skills and expertise required of mediators in a modern justice system.
  5. JUSTICE has also proposed a new model of resolution for housing disputes. Specifically, a Housing Disputes Service (HDS) that seeks to intervene early in disputes, investigate the underlying issues that give rise to the claim (e.g., welfare and benefits issues, debt issues and mental health needs) and provide holistic support to achieve lasting solutions. The aim of the HDS is to de-escalate housing disputes, ‘nip problems in the bud,’ and thereby sustain relationships beyond the lifetime of the dispute. The proposal for the HDS envisages incorporating elements of DR models utilized elsewhere in the justice system, at home and abroad, to resolve disputes through a staged approach.

Read our full response.