Mediation Prior To Small Claims

[fostertom]

If I start a Small Claims case, can that force my client to meet me and hear my case (instead of stonewalling) by the Small Claims obligatory prior Mediation requirement?

[Old_Geezer]

No idea but would suspect no one can force someone to meet up, although it may be in their interest to do so.

[fostertom]

It seems to have some teeth ... 

"At the mediation appointment, the mediator will speak to each side separately and work between the two to find a solution each side can agree on. 

Crucially, the parties are not required to reach a settlement at mediation, but it provides an opportunity to discuss a potential resolution."

Sounds like it's in person, not on Zoom or something, but the parties are kept part, the mediator as go-between.

[fostertom]

Meant to add - this link:

https://www.rpclegal.com/thinking/insurance-and-reinsurance/compulsory-mediation-in-small-claims-a-quick-guide-for-the-busy-lawyer/

 

[Barmaid]

You need to refer to Practice Direction 51ZE for more info.

This type of mediation is often remote but remote mediation is just as successful as in person.

The thing with mediation is that if a settlement is reached, normally both parties go away unhappy since neither achieved their goal. However if a settlement is reached that both can live with and taking into account litigation risks that is generally a good thing.

 

 

[fostertom]

Do you mean mediation tends to just 'split the difference' or something, regardless of rights or wrongs, just to chalk up a result; whereas a settlement (you mean in court instead?) tends to somehow be better? More likely, I'd think, in court someone wins and the other loses?

[Barmaid]

The idea of mediation is to settle the case.  The mediator cannot order a particular settlement and the parties are not obliged to reach a settlement.  It is a form of negotiation whereby the mediator attempts to bring the parties closer together.  Whilst you may wish the other side to hear your case, you have to bear in mind that it is relatively unusual for one side to persuade the other that they are right.  Matters can also be taken into account at mediation that would form part of the enforcement process (which would be an additional process).

Here is an example, Fred Bloggs owes Joe Smith £5k for services rendered under a contract.  Joe takes Fred to court and is awarded judgment.  Fred fails to pay.  Fred has no assets so bankruptcy is not an option.  Joe then takes Fred back to Court to enforce the judgment.  Fred offers to pay £50 a month.  Although by this time, the figure has risen due to costs.  Poor old Joe will be waiting an awfully long time for his £.

If they had gone to mediation, Fred could have disclosed his financial situation and said to Joe "look, I cannot pay, I can get a loan for a maximum of £3,900.  Here is proof of that" (unlikely to be possible once a CCJ has been registered).  Fred might wish to accept the offer of an immediate payment - although it is for less, it is probably a commercially sensible decision.  I could think of loads of different examples.

Note, anything said at mediation CANNOT be used in Court.

And also (very important), however good you think your case is, no case is ever watertight.  There is ALWAYS a risk.

[Barmaid]

If you go to Court,  the Judge will decide the case based on the evidence.  The likely outcome depends on the type of case it is.  However, it is not about "right" or "wrong", it is based on the Judge's findings of fact based on the evidence and the applicable law.  The standard of proof is the balance of probabilities.

But there are all manner of things that can, and routinely do go wrong.  Missing a deadline, omitting a key document, a witness not turning up are just some of the things that could impact the outcome of a case.