JEJC.2006.6
European Scales of Justice Awards
Nomination Details
1. Name of Nominee: Mr James Rustidge (Manchester County Court)
Parent Organisation: Her Majesty's Courts Service (HMCS), United Kingdom
Address:
Civil Law and Justice Division
Department for Constitutional Affairs
5th Floor, Selbourne House
54-60 Victoria Street
London SW1E 6QW
Tel 0207 210 2174
Fax 020 7210 8825
Goldfax 0870 739 4171
2. Represented By:
Mr James Rustidge
Small Claims Mediator
Manchester County Court
Courts of Justice
Crown Square
Manchester
M40 9DJ
Telephone:
E-mail:
Fax:
3. Scheme Submitted:
Type of Service: Small Claims In-Court Mediator
Size of Service: 1 Small Claims In-Court Mediator Serving the Manchester Area in the United Kingdom
Date of Introduction: June 2005
4. Items to be attached
A description of the scheme
The first in-court mediation service in England & Wales was set up in Manchester County Court to offer a mediation service for small claims (claims up to £5,000). The mediation service provides free mediation advice to parties wishing to settle disputes out of court. Each case is assessed on the facts and the mediator encourages open-minded discussions with the disputing parties to arrive at a range of possible settlement outcomes, which are not exclusively financial. Cases are referred to the mediation service by the judiciary or self-referred via mediation leaflets posted at the allocation stage (where court forms are sent out to litigants to find out details about case). Settlement options are explored and the case is de-listed (taken out of the court system) once both parties have signed a consent agreement, or a judicial order is made agreeing the terms of the settlement.
While the mediation service was set up for small claims only, the mediator also signposts customers with higher value claims to other mediation providers using the National Mediation Helpline; a service set up to help people in the Fast (£5000-£15000) and Multi track (£15,000 upwards) to explore mediation options. The mediator actively promotes new ways of delivering information on mediation, working closely and forging partnerships with Court Managers, Judges, the Area Customer Service Officer and other local primary stakeholders. The mediation scheme in Manchester is part of Her Majesty's Court Service (HMCS), and as such, control is exercised centrally so that the service meets HMCS and other Government-wide customer service standards and performance targets. In addition, the mediator was recruited locally because it was felt that a locally based mediator with knowledge of local social, economic and cultural trends had a better chance of settlement options according to the profile of the case.
The mediation service also offers a better quality of outcomes because a range of settlement alternatives can be taken up by the disputing parties. They are not all dependent on a financial solution.
The service is customer driven as the parties decide whether they want to try mediation before deciding on final outcomes with the mediator. Disputing parties are not pressurised to take up the mediation service on offer. Though mediation is encouraged and supported by the Civil Procedure Rules, it is still a voluntary service. Since a large proportion of small claims cases are litigants in person who are unable to benefit from good quality advice that might encourage them to settle, this service is able to offer this advice free of charge and without prejudice. It must also be borne in mind that the mediator is not legally qualified and cannot give legal advice.
The mediation advice given is based on the mediator listening to both parties with an open mind and allowing them to test the strengths of their respective cases before coming to a middle ground for settlement options. There is no 'all or nothing' approach and the mediator encourages parties to see that there are no winners or losers. The free service is available to all court users regardless of ethnicity or social status.
A description of the effects of the scheme
The mediator first contacts the parties to form a platform for negotiation at the mediation appointment. In doing so, he seeks to earn the trust of both parties. This has led to a number of innovative settlements e.g. donations to charity, apologies, a courtesy car during repair work, re-activation of business contracts. This original approach i.e. giving parties the option of coming to a settlement that is not solely a financial one has resulted in 86% of the 120 cases to date settling on the day itself. The quality and compliance of settlement outcomes were also higher because the parties themselves shaped the settlement alternatives, resulting in a 100% compliance rate in Manchester. One unexpected outcome of the scheme was the use of settlements over the telephone. This has outstripped face-to-face mediation as the scheme progressed through its pilot phase and is testament to the flexibility of the scheme and James' creative approach. It was initially introduced because some parties lived in areas that were inaccessible or areas poorly served by public transport or roads. By using the telephone parties can now resolve their disputes without having to travel to court, saving time and expenses.
Settlement rates for telephone facilitations were similarly high at 87% and as a consequence, clear procedures are being put in place as guidance for telephone mediation. Furthermore, best practice procedures from the mediator's overall mediation experience are being put together into a small claims toolkit to help court managers and court staff who want to start up similar schemes in their courts. HMCS, because of the success of the Manchester scheme, has put forward a business case to carry forward similar schemes into other courts in England and Wales. The initial rollout of the scheme will commence April 2007. At the start of the scheme some judges were unsympathetic towards the inclusion of the in court service because it was an experimental scheme and dependent on a non-legally qualified individual dealing with legal issues. As the mediator began to achieve settlements, even in some unlikely cases, e.g. negligence cases, the judges began to understand the valuable service he was providing. The mediator's regular feedback and engagement with the judiciary on case progression allowed them to appreciate that he was capable of settling diverse small claims cases, even without a legal background.
The mediator has also robustly communicated the existence of the service and forged links with the judiciary, court managers and staff, local advice sectors and pro bono groups and other mediation providers. Presentations were given to Citizens Advice, Age Concern, Housing Concern and District Judges. A further important effect of the scheme is the time taken to hear cases. The average time taken for a small claims case from allocation to hearing in court is 13 weeks. Comparatively, it takes less than 5 weeks from initial contact with James for parties to come to a mediated agreement. Feedback from court users suggests that the service is quicker, cheaper and less stressful than the normal court process. This has resulted in a significant reduction in the number of small claims cases going to hearing, saving judicial time and court resources. There are over 2,000 small claims cases in the Manchester area and the service has the potential to deal with up to 500 mediations, and given an 86% settlement rate, more than 400 settlements per annum.
Any possible future additions which might improve the results of the scheme
Experience from Manchester has allowed HMCS to identify any limitations of the scheme. HMCS is developing a course of action to address the problems identified to enhance the overall service to court users. One aspect of the scheme that is bound to happen is that litigants may have to attend court twice - one for the mediation and if that fails, again for the court hearing.
The increasing use of telephone settlement means that up to date, modern equipment is needed for this type of mediation e.g. Conference calling facilities can negate the need for the mediator to make numerous calls to both parties on one phone to arrive at a settlement outcome. Telephone mediations also needs to have clear procedures, definitions and boundaries in place for it to work effectively and efficiently. Parties must be assured that this is not a second-class service because it is not conducted in court premises and that compliance to any settlement agreements are the same as face to face mediations.
The reliance on one in court mediator means that if he/she is on leave/sick/maternity etc, the mediation service would be inoperative during this period. Provision for cover needs to be in place. This could be in the form of a trained member of staff dealing with minor mediation and administrative duties during periods of absence or it could be out-sourced to a local mediation provider to provide an accredited mediator as cover. One mediator may also require administrative cover if the service take up by users exceeds expectations. The mediator's capacity to deal with a high volume of cases will need to be properly assessed. Some form of administrative support could be built into the service from existing court staff without the need to recruit additional staff.
The mediator also needs professional support from other mediators or an accredited body, for professional development and to make certain proper mediation practices and procedures are followed. Ongoing professional development will help mediators to build on their experience with additional knowledge. This may be in the form of discussions about difficult cases with other mediators, attending mediation conferences and seminars to keep up to date with mediation practices to improve accountability and overall service delivery. The court can also assist the mediator by ensuring that the court process is clearly understood by court users so that they can make informed decisions about their case when approaching the mediation service for an outcome.
Freely available leaflets and posters with good quality, easy to read information are a useful way to ensure that litigants are aware of the advantages and disadvantages of both routes. The leaflets will have to be printed in the different languages native to the member state so that access to justice is available to all regardless of ethnicity. Clear and accountable complaints procedures must be in place for litigants to use if they are unhappy about the service. Feedback questionnaires and forms are a useful way to evaluate how the service is running and how it can be improved.
Any documents, press articles, evidence from members of the public relating to the scheme
· Article from the Observer Newspaper outlining the Manchester scheme and its successful implementation.
· Letter from a member of the public expressing her gratitude and satisfaction with the service.
· The mediation leaflet used by the Manchester in-court service with quotes from satisfied members of the public highlighted under the section entitled 'What have people said about the service?'.
5. Does the scheme have the support of the responsible public authorities in the Country?
The responsible public authority, HMCS, is an executive agency of the Department for Constitutional Affairs and oversees all courts estates in England and Wales. The mediation service in Manchester was initially intended to be a pilot scheme only, to test the viability of alternative dispute resolution in small claims cases. However, because of the unexpected and continued success of the scheme, HMCS have decided to make the scheme permanent in Manchester with a long term goal of rolling this service out to all other civil courts in England and Wales.
The Department's ongoing 5-year strategy is to reduce the number of disputes that are resolved by parties taking their case to court. One of the key aims is to prevent the many needless or under-prepared cases from entering the court system, in order to free up court time and to allocate resources to cases that require the specialist intervention of the judiciary. The main aims of the Public Service Agreement (PSA) 5 target is to:
· increase advice and assistance to resolve problems earlier and more effectively;
· increase opportunities for cases to be resolved out of court; and
· to reduce delays in cases being heard in court.
The success of the scheme has increased significantly the awareness of mediation amongst senior operational managers also; who have hitherto been generally agnostic about the benefits of court-based ADR services. In particular, the pilot has caught the imagination of the Chief Executive and Board of HMCS, who are now interested in rolling out the service more widely. The success of the scheme has been integral in meeting the Department's SR2004/PSA5 target and the Government pledge on ADR.
6. Do you believe the scheme to be usable in other courts in European States?
A free or relatively cheap small claims mediation scheme based on the Manchester model can be quite easily put into operation in the civil courts in any of the EU states. This will be dependent on whether the civil system in the member state is able to support such a scheme i.e. does existing civil legislation or any civil procedure rules in place complement or encourage such a scheme.
Furthermore, consideration will have to be given on whether there is a need for such a scheme if the civil system, whether in the small claims or otherwise, is already operating efficiently. The judiciary will have to be consulted on whether such a scheme is workable as the judicial hierarchy in the member state is likely to be different to the UK. For example, judges who deal with small claims cases may consider that reducing their caseload with mediation schemes would deprive them of their judicial experience as part of their professional development. In addition, the financial limits for small claims may mean that there may not be enough small claims cases for an in court mediator to be cost efficient i.e. if the financial ceiling is a low value, not many cases may end up in court e.g. Scotland has a £750 limit and England and Wales has £5000 limit.
Any member state interested in setting up a scheme will need to take account of the following considerations:
· Cost of implementing a small claims mediation service and projected savings
· Throughput of cases - is there sufficient cases per annum to warrant an in-court scheme
· Referrals - will there be sufficient cases referred to the service by the judiciary and by self referral via leaflets
· IT/Telecoms/Fax - affordability of equipment needed for the mediator to conduct day to day mediation activities e.g. conference facilities
· Accommodation/Alternatives -suitable offices for the mediator and rooms to conduct mediations.
· FT/PT Mediator Option - a part time mediator could be employed if a full time option is not cost efficient
· Settlement Rates - mediator needs to achieve high enough settlement rates to divert enough cases from the court system to free up court resources and to make savings
· Support of the Judiciary - high level of judicial engagement is required for the scheme to be publicised amongst the judiciary and to ensure judicial referrals
· Mediation Leaflets/Posters - need to be printed and displayed in courts and citizen advice centres and other free legal services to make the public aware of scheme for self-referrals.
· Training/Recruitment/Accreditation of Mediator - the mediator needs to be accredited to an established mediation provider or needs sufficient training to be accredited as a mediator by a mediation body.
· Support/Cover for Mediator - court staff need to be trained to ensure there is sufficient cover during absences, e.g. sick leave, annual leave maternity leave etc. During any prolonged absences the service could be out-sourced to a local mediation provider.
I, Andrew Frazer, representing the aforementioned institution/organisation, declare that I am aware of the rules of the competition, which I undertake to comply with.
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Signed
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Date