CMC Welcomes HMCTS Opt out Mediation Report
BY HM COURTS & TRIBUNALS SERVICE
The CMC welcomes the HM Courts & Tribunal Service opt out mediation evaluation report which makes for interesting reading. The data needs careful examination but what is clear is that where parties understand what mediation is and how the process might work then mediation is more successful.
The report suggests that different approaches might be taken for first time users of the system compared to those who have used it previously and we would welcome this. Education about, explanation of and engagement with mediation will be key to increasing the take up and success of the process.
As part of the HMCTS Reform Programme, the Online Civil Money Claims (OCMC) has been developed to provide a digital system for issuing and progressing civil money claims.
In May 2021, the OCMC service piloted a new approach, to test offering a mediation appointment on an opt out basis, rather than both parties needing to opt into the service. This report presents the findings from an evaluation to understand this change in offering mediation from an opt in to an opt out basis within OCMC claims between £500 and £10,000 (excluding court fee and any interest claimed) for those issuing claims without legal representation.
Separately and subsequently to this evaluation there has been a public consultation on the future of mediation in the civil justice system, including the proposal to introduce automatic referral to mediation for all claims allocated to the small claims track. Opt-out evaluation findings have and will continue to feed into this wider work on mediation in the civil justice system. This report and evaluation focus solely on the change from offering mediation within OCMC, from on an opt in basis to an opt out basis, and the experience of those users going through the small claim’s mediation process.
Following the change in offering mediation from an opt in to an opt out basis there was a slight increase in the proportion of claims referred to mediation (17% to 21%). This increase in referral to mediation is down to both parties (claimants and defendants) agreeing to mediation in greater proportions. The proportion of defendants agreeing to mediation increased from 27% to 31% of all claims. Where a defendant agrees to mediation, the claimant is then asked about mediation. Here there was also an increase, from 64% to 69% of claimants agreeing to mediation (in cases where the defendant had already agreed).
It’s important to note that at the same time as the change in mediation being offered on an opt in to an opt out basis the information presented to users at the decision point around mediation was also updated following previous HMCTS research suggesting some aspects of mediation were unclear for users. Therefore, it’s possible that both the change in opt in to opt out and the change in information provided to users at this point impacted on the slight increase in referrals to mediation.
The change in how HMCTS offered mediation had no impact on the proportion of cases which settled at mediation. However, because the change resulted in slightly more cases reaching mediation, this meant that overall a higher number of claims issued were settled at mediation. In those claims which settled no difference was seen in the average value of the settlement. With the average monetary settlement being for a little over half of the claim value (55% before and 54% after)
It was also clearly reported by users that even when mediation appointments did not end in an agreement there were still clear benefits, including potentially reducing the areas in conflict.