Last year the MoJ issued a wide-ranging ‘call for evidence’ seeking views on how to bring (alternative) ‘dispute resolution’ services - the preference among policymakers now being to omit the A of ADR - more into the mainstream of civil justice. In its latest consultation in this area, the MoJ proposes to legislate to require parties in all defended cases to be referred for a mandatory one-hour mediation session, operated by the Court Service, before a claim can move towards a hearing.

This is not as wide and radical a proposal as it might first appear. The proposed scope of mandatory mediation will be for small claims only i.e. those valued under £10,000 and it will exclude personal injury cases and housing disrepair claims. Given this restricted scope, the first set of questions in the consultation are probably of limited interest to general insurers.

However, the consultation floats other, related ideas with potentially wider reach. For example, a second set of questions seeks views on (a) extending compulsory mediation beyond small claims “to higher-value and more complex cases in the County Court” and (b) options for effective and proportionate regulation of the commercial market for mediation services which would necessarily operate in those cases. This part of the consultation paper also notes that earlier in the year the Department for Business (BEIS) began work “to enhance the quality and oversight of ADR services by introducing a mandatory accreditation requirement”.

An Impact Assessment published alongside the MoJ’s consultation makes it very clear that dealing with court backlogs due to Covid-19 is an important factor underlying these proposals. It is worth quoting the relevant passage of the IA in full:

“Court recovery, following the Covid-19 pandemic, is one of the Government’s key priorities. Within the County Court, incoming claim volumes are on average 78% of pre-Covid levels. However, timeliness remains below pre-Covid levels. Small claims are taking an average of 51.4 weeks between receipt and hearing (compared to 37.1 weeks in 2019) while fast-track claims are taking 71.7 weeks (57.7 weeks, 2019). Meanwhile, multi-track claims are taking 108.7 weeks (93.0, 2019).

Responses are required by 4 October 2022. If mandatory mediation in small claims could be introduced by secondary legislation alone, it would just about be possible for that to be implemented by summer 2023; bringing forward the wider issues set out here will almost certainly run to rather longer timescales.