Kenneth Clarke is proposing that more cases that would otherwise go through the courts be resolved through telephone mediation. The plan is that it will cut down on costs and reduce waiting times for those seeking resolution in disputes such as small claims, neighbourhood rows and debt recovery.
Under the plans around 8,000 cases will be taken off of the hearing list and be resolved by mediators instead. Many people, including small business and individuals who feel the need of recourse to the law say that they think that pursuing a case through the courts will be both lengthy and expensive, the chance to have their case dealt with by a trained mediator will take those concerns away, making justice more accessible.
Small claims will automatically be sent to the mediation service and any disputes which can’t be resolved will then proceed to the court for trial. Of course under the current system courts would expect to see some sort of mediation or pre-trial resolution before they hear many cases, this new initiative comes in response to a public consultation which addressed the issue of how to deal with the million and a half cases that come before the civil courts in England and Wales each year.
80 percent of those who responded to the consultation thought that mediation over the ‘phone was a good idea, however, many of the other 20 percent who disagreed with the proposal were lawyers, solicitors and judges.
The Ministry of Justice records that six out of seven responses from the judiciary were “firmly against” the idea of having mediation hearings conducted by teleconference. Their biggest concern was monitoring and controlling the behaviour of witnesses and other parties during the hearing.
The mediation service will involve an accredited mediator speaking to both parties. The hearing would take about six weeks to arrange which compares well against the 14 weeks it takes to bring a case before a judge or magistrate, the ministry also point out that mediation currently has a success rate of95 percent.
In putting forward the proposed changes Kenneth Clarke said: “Without effective civil justice, businesses couldn’t trade, individuals couldn’t enforce their rights, and government couldn’t fulfil its duties.
“But individuals and businesses tell me that the civil justice system at the moment can sometimes be intimidating and that they don’t know if using the system will be worth the time, expense and hassle of going to court.
“I want people to be able to resolve their disputes cheaply and simply through the courts’ very successful mediation service, and I want judges freed up to make quick and effective judgments based on the facts of a case, without unnecessary legal complication.”
Critics of the “where there’s blame there’s a claim” mentality have pointed out that because many insurance companies settle out of court in personal injury cases for injuries such as whiplash the cost of insurance has increased hugely over the past year. These new proposals will mean that even more of these cases will be settled and for a greater threshold award. This will protect against extortionate legal costs but in creating a system that: “encourages early settlement” in road traffic accident cases up to £25,000 it will be necessary to put insurance premiums up further in order to cover the awards that insurance companies will be obliged to pay out.
Equity cases will be referred to the courts where the value of the property exceeds £350,000 rather than the current £30,000 in order to reflect the rise in house prices since the rules were last changed in the 1980s. The Law society said: “The initiative is a step in the right direction, but it should be allowed to bed in and ensure that it can manage the workloads. There is a question mark over whether a telephone portal is suited to handle claims as high as the new limit, which is a significant amount to consumers and small businesses.”
David Bott, speaking for the Association of Personal Injuries Lawyers stated that: “Policymakers need to be aware that extending the current system for road traffic accident cases, when that system still has serious technical and administrative flaws, will inevitably mean a further tilting of the playing field away from genuinely injured individuals in favour of big businesses and insurance companies, who are, actually, quite capable of looking after themselves.”
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