The Conflict Expert

I was recently asked to help a client bring a claim in the Small Claims Court. Claims that are dealt with in this way amount to less than £10,000 and are not legally complex. A claim for non-payment under a contract for less than this amount will often be allocated to this “track”.

There’s a very good reason for this. Costs.

 These types of cases can be dealt with quickly and relatively cheaply. A court fee is paid up front and only this is recoverable from the other side if you win, together with reasonable expenses.

Neither side can recover their legal costs and so the parties are encouraged not to instruct solicitors. In consequence, the process is much more user friendly. That doesn’t mean that you can ignore the law or that you don’t have to comply with procedural requirements, however, you don’t necessarily have to be legally trained to bring a claim to a final hearing.

If you are making the claim yourself, you need to be open to the possibility of settlement and approach negotiation reasonably. It’s difficult to say what this means as each case may be different. What it does mean is that refusing the free mediation service offered by the Small Claims Court may not be viewed favourably by a judge. Moreover, failing to respond to requests to negotiate or outright refusing to engage in negotiations could lead to negative consequences.

The Mediation Service

Once you have made a claim (usually online), the defendant will have a certain amount of time to respond with their defence. The court will notify all parties of the receipt of this correspondence and they will also advise of any deadlines or extension of time to respond.

At that stage, the court offers mediation to the parties.

The parties are given a date and time slot which is then confirmed by telephone. You will also be asked to agree to be flexible and amenable to settlement. Appointments are oversubscribed and if you can’t make the time and date given, it’s almost impossible to reschedule. If you are being represented by a friend, you need to give express consent that they may represent you.

My Experience

The mediation is conducted by telephone. The mediator called me first and asked me to explain the case. I asked her if she had read my claim and she said she hadn’t. We quickly cut to the chase.  I felt rushed and irritated that she hadn’t read a one-page document that was so important.

The focus was on how much we would be willing to offer. That was within the first five minutes of the conversation.

At one point, the questions that were asked felt accusatory and I felt defensive towards the mediator. I was aware of my feelings and so could deal with them whilst the mediator was talking to the other party. It’s easy to understand why a participant would react angrily to the mediator’s approach.  

The Result

We didn’t’ settle. We did, however, make more progress in making offers and understanding what is being rejected for which reason. This is useful information for pitching further offers and what the other party feels about the items being claimed.

There was no room for integrative bargaining or anything creative. With only an hour slot, this is understandable. This also explains why the emotional side of the dispute wasn’t acknowledged or discussed and very little empathy was communicated. It was simply a horse trade.

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The Advantages

It would be unwise to refuse to mediate as the parties must attempt to act reasonably in settling cases before they reach the final hearing. This is a procedural requirement. The mediation did help both parties to soften their position slightly and future discussions could be more fruitful as a result of this half hour mediation. Sadly, we didn’t use the whole hour as it soon became clear that negotiations had stalled.

I can’t help but feel that the mediator could have been more encouraging as we were able to make progress until the other side made it clear that a particularly undesirable offer was “final”. I personally like to test that idea in a way that makes the parties understand that “final” is often a constrained place to be.

The Disadvantages

There is not enough time to exercise empathy, to get to know the parties and what their interests and motivations are. There is certainly no time to build trust or reassure them that what they say is confidential and treated in a non-bias manner. These are key characteristics of any skilled mediator and really help to bring the numerous benefits of this process to life.

The point of the Small Claims Court mediation service is to keep cases out of a congested court system and reduce the costs of the judicial system. In reality, the parties would probably not have taken a day out of their schedules to mediate a claim for less than the £10,000 cap and so it makes sense to limit this type of mediation to the hour slot and over the telephone.

The exercise was a useful reminder to me about how it feels to participate in a mediation. It’s nerve racking. You feel judged, even when you know the mediator is a neutral third party who is supposed to act neutrally towards both parties. Phrasing of questions, the words used and tone, is important in supporting that role. It’s also crucial to read key documents (not all!) before a mediation as to admit you haven’t feels very dismissive.

Mediation can be a creative, holistic and healing, especially for highly emotional conflict. All parties can learn and grow from it. The Small Claims Court version doesn’t have much scope for this. It’s just about saving time and money which in themselves, are valuable benefits.

My view: Definitely participate but don’t expect too much from it.

What are your thoughts? I’d love to read your experiences !