You may recall that, on behalf of the Association, the Law Reform Committee drafted, and the Main Committee approved, a response to the Ministry of Justice Consultation on dealing with changes to the county courts.
That response was sent to the Ministry of Justice in June 2011. A copy is on our website.
We have now seen the response sent by the Master of the Rolls and the Lord Chief Justice on behalf of the Judiciary.
Interestingly it is largely along the same lines as the response that we drafted and sent.
Like us, the Judiciary do not agree that there should be mandatory pre-action directions for money claims under £100,000 or mandatory ADR.
Like us they do not support an increase in the small claims limit.
They however disagreed with us in approving an increase in the fast track ceiling from £25,000 to £50,000.
In remarkably similar language they agree with us that there are enormous benefits of ADR, particularly mediation, but point out that that is not suitable for resolving all civil disputes. They add the point that frankly we had anticipated, but was not for us to make, namely that there should be “rigorous accreditation systems” for mediators.
To a limited extent they agreed with us that there should not be an automatic referral to mediation for small claims, but felt that it would be beneficial if all that it means initially is speaking to a court-based mediator. They reiterate, as we do, that compulsory mediation is not appropriate.
They agree that commercial mediation is more expensive than going through the small claims procedure and therefore it should not be imposed.
They agree with the point we made that compulsory mediation information sessions for claims up to £100,000 has very little point.
Although there is an argument to be made for compulsory mediation, it is felt that that is not the appropriate way forward. Nonetheless mediation clearly is strongly to be encouraged in all cases and members of the Association are reminded that the Association website contains a list of accredited mediators who are members of the Association and therefore presumed to know something about property law. There is no fee charged by the Association and you therefore can negotiate the fee directly with the mediator of your choice avoiding the administration cost and fees of other mediation providers. We would urge you to make full use of the list of mediators on our website in any case where you feel that having a mediator with some knowledge and experience of property law would be of benefit to your clients.