Telephone Mediation through the Small Claims Mediation Scheme has proved to be very successful (figures for Aug – Oct 2011 showed 67% of nearly 3,000 cases settled). Currently the scheme is free to the users. Once claims are in the Fast Track then the free scheme does not apply and there is an impression that costs of a mediation for a Fast Track claim would be disproportionate. Therefore mediation is far more likely in the Small Claims Track and the Multi Track than in the Fast Track.
Under the current Fixed Costs regime Part 45.10 the only disbursements that can be recovered are:
- the cost of obtaining medical records;
- a medical report;
- a police report;
- an engineer’s report;
- a search of the records of the Driver Vehicle Licensing Authority;
- a legal expenses premium;
- court and counsel’s fees for infant settlement approvals; and
- “any other disbursement that has arisen due to a particular feature of the dispute.”
This means that a Mediator’s fee would not be recoverable which acts as a disincentive for claimants in particular to wish to participate in mediation. Under the relatively modest figures recoverable for predictable fees in RTA claims this was not a great issue as mediation was always likely to be disproportionate. However that is set to change as the Ministry of Justice is proposing to implement the “Table B” matrix option from Sir Rupert Jackson’s Final Report on costs – see the letter from Helen Grant MP, Parliamentary Under-Secretary of State for Justice. That means that the following fixed costs ranges would apply from April 2013 to cases valued between £10,000 and £25,000 and falling outside the portal and settled post-allocation but before listing:
- RTA : £3,880 to £6,880
- EL : £5,850 to £9,600
- PL : £5,315 to £8,690
There are different proposed rates for cases settling pre-issue and post issue but pre-allocation. Clearly with these sums a half-day or telephone mediation for fast track cases would not be disproportionate but if the fee is not recoverable as a disbursement the disincentive remains for claimants and use will be limited.
It is clear then that if mediation is to be a feature of settling Fast Track claims as well as Small Claims and Multi Track claims part 45.10 needs amending to include a mediator’s fee (with a sensible cap) to be included.