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Going into mediation instead of going to Court

Submitted by on 23 Nov 2010 – 11:59

By Jonathan Djanogly MP, Parliamentary Under Secretary of State, Ministry of Justice

It’s been five months since my appointment to the Ministry of Justice. In that time I’ve had the opportunity to visit courts, advice centres and many of the other bodies and organisations that make up our civil justice system. What I am hearing is that both the public and the dedicated professionals working in the system want reform. They want a system that is fairer, faster and less costly.

The Civil and Family Justice system is a service that seeks to protect rights, resolve complex disputes and recover debts. It is because the system is so important, that we must improve its efficiency and get it working to better meet the needs of people it exists to serve.

At a time when we must spend with the utmost care and when services are already straining to keep up with increased demand, how will we bring about change?  First we must ask some fundamental questions about the way we, as a society, use our civil justice system and the role each of us plays in taking responsibility to resolve our own problems where possible.  This is where other dispute resolution options other than court have an important, possibly revolutionary role to play.

All too often court has been seen as the first, rather than the last, resort for dealing with disputes – whether it is a contractual disagreement between two companies or neighbours with a boundary dispute. People can find themselves embroiled in court actions when their disagreements might be better resolved between themselves at a much earlier stage and with a more satisfactory outcome, rather than the “winner takes all” approach offered by litigation. There are already a range of alternatives to court that include mediation, adjudication, conciliation and arbitration. As a government we want to encourage people in disputes to play a greater role in resolving them themselves, in both civil and family issues. The intervention of the court should only be sought when a genuine point of law exists or when people or businesses are at risk.

Particularly in relation to family cases where decisions about contact and residency of children are being made, we must ask whether a court is the most appropriate setting. I firmly believe that we need to look at the role mediators can play, so that more families can sit down and come to agreements without the cost and disruption often caused by lengthy court cases. Our evidence shows that mediation can be quicker, cheaper and provide better outcomes than going to court. Mediation is just one option being looked at for the Government in the Family Justice Review, chaired by David Norgrove,

More needs to be done to increase awareness of and access to mediation services. There is some good work already taking place. With mediation services already offered at 750 locations across England and Wales, many people are taking up this option to resolve disputes. In relation to small claims in the county court all of Her Majesty’s Courts Service (HMCS) areas in England and Wales have access to a small claims mediator. This enables over 90 per cent of mediations to be conducted over the telephone, saving the parties the time and expense of having to travel to court.

Looking to the future, there’s still a great deal we can do. For small claims we will build on the success of the small claims mediation service and look to increase significantly the number of people taking advantage of this quicker and cheaper way of resolving their dispute.  At the same time, we must ensure that when judicial intervention is required, our civil courts provide a streamlined, efficient and effective service.

We must also ensure that people understand the full range of dispute resolution options available to them. I believe the legal profession has an invaluable role to play in supporting people take a less adversarial and a more collaborative approach to solving their problems.

By working closely with dispute resolution providers, the judiciary and the legal profession, we have the opportunity to pave the way for reform. Together we can create a civil and family justice system that serves the public more effectively and offers greater value for money.