Compulsory mediation in small claims cases in the county court has been with us now for almost two years, albeit that the scope of cases has varied over that period and certain types of claim, such as those involving personal injury, continue to be excluded.
It would perhaps not be unfair to say that, while some theoretical benefits of the change could be identified, there was a prevailing sense that, in practice, the downsides would outweigh any advantages, with little positive emerging from the process. However, it now seems that those who expressed scepticism were, perhaps, being overly cautious: in our view, the changes have been broadly positive.
Since the new mediation step was introduced, experiences with the service have changed as both parties and mediators have become more experienced with the process. The following are a number of observations gleaned from our experiences:
- With the vast majority of claims now being issued through the DCP or OMC systems, there has been a large increase in the number of mediation appointments.
- As a result of the courts listing an increased number of mediations, lead in times are increasing with most cases being listed with a mediation date some six to eight weeks in the future.
- Mediators are becoming more confident and comfortable with the process leading to the average time for a mediation to be concluded dropping, particularly in cases where there are limited differences between the parties and settlement ought to be achievable.
- Particularly in claims brought by litigants in person where requests to them for information have not been satisfactorily answered prior to the mediation, it is helpful where the mediator can, as an independent person, identify to the claimant what is necessary for them to prove their claim.
- A further effect of the increased experience of the mediators is that they are more prepared to ask at the outset whether there are prospects of a matter being settled within the call window and if there are not, for example where liability is disputed, being prepared to conclude the mediation quickly.
- Claimants are still engaging and, in some cases, reaching settlements prior to a mediation appointment.
- We are aware of courts ordering claimants to provide explanations of failures to engage with the mediation process but no such cases have yet gone to trial and, therefore, the effect is yet to be observed.
- Where claims have not settled at a mediation appointment, some claimants remain engaged with a settlement process and agreements can be reached post-mediation. This can, for example, occur where it has been suggested to a claimant during the mediation that they provide further information to enable the defendant to assess the claim and they have done so.
- Of matters where the mediation appointment takes place, approximately 25% of matters handled by our vehicle hire and damage team where liability is not in dispute, are settled during the call.
While the introduction of compulsory mediation cannot be described as an unqualified success, it has certainly delivered some clear benefits. Any attempt to determine what might otherwise have happened to cases referred to mediation would be speculative; however, it is reasonable to assume that some would have proceeded to trial and that mediation has helped bring about a quicker resolution.
The current small claims track compulsory mediation process is a pilot scheme due to run until the 6 April 2026. However, in our opinion, compulsory small claims mediation is here to stay. We do not anticipate any restriction of its current parameters; rather, future developments are more likely to involve expansion into other areas of small claims and potentially into higher‑value claims.
Claims involving personal injury, where an assessment of damages is required, are nevertheless likely to remain unsuitable for this form of mediation. If the court system were to require personal injury claims to proceed via compulsory mediation, a process more closely aligned with the standard mediation model would be necessary, together with a significant increase in available judicial and court resources.
In conclusion, while compulsory mediation remains in its infancy, there have been positive experiences and we will be following any developments closely, ensuring that our clients remain briefed of any forthcoming changes.
For more information or advice, please contact one of our experts in our Strategic Advisory Team.
