Court closures – Is Mediation the way Forward?

The Ministry of Justice has recently published several consultations which ask for views on whether to close 103 magistrates’ and 54 county courts that are deemed to be “underused” and “inadequate”.  The purpose of the consultation is to “modernise and improve the use of Courts in England and Wales[1]”. Read into that what you will.

Each consultation is divided up into separate geographical areas. The proposal for London is to merge the 28 existing Local Justice Areas into just 9, and to replace the current 20 outer London youth panels, and the Inner City Youth Panel, to just 9 Youth Panels. The arguments set out in favour of closure highlight the state of the Court buildings themselves and explain how existing court work loads may be redistributed.  For example, Acton Magistrate’s Court is described as being “104 years old and not fit for purpose[2]”, and it is recommended that it should close and its work be listed across other West London Courts. If the planned closures come to fruition then it will inevitably result in more pressure being placed on the surviving courts. 

But will the proposed closures and cuts stop there? I think not. I predict that the scythe will continue to cut this year, and beyond. The Ministry of Justice has been told to save £325m, and that gargantuan sum surely indicates that the pain is going to be spread around. The Tribunal Service is an Executive Agency of the Ministry of Justice and may be the next in line.  The business plan for the Tribunal Service[3] refers to an ongoing Performance and Efficiency Programme (PEP) requiring it to deliver a total of £8.2m in savings during 2009-10, rising to £12.4m in 2010-11.  

I predict that a direct consequence of these cuts will be that solicitors will increasingly consider the other weapons in the dispute resolution armoury; rather than using the traditional, court or tribunal system.

As we all know many litigants become fixated on having their ‘day in Court. Although once you have provided your client with a detailed breakdown of your likely costs (and you have explained the procrastinated time frame to even be listed for a hearing) their appetite for Court room battles may dissipate. I remain puzzled why mediation is not being embraced by more law firms and promoted to clients.

How many organisations would not jump at the chance to end a long running dispute quickly and cheaply without having to set foot into a court or tribunal? No client is going to thank you when they receive an invoice for several thousand pounds for litigation costs, if they do not obtain what they perceive as a fair result. Some workplace disputes may be resolved by getting the parties together in a room, allowing them to air their concerns/complaints and exploring their feelings; (bear in mind that this is frequently the first time that this has happened.) Consider this scenario during a workplace mediation: one party offers to apologize to the other, which is accepted, and the two parties then discuss ways in which they can work together more effectively, and their relationship is restored. No vicious personal grievance letters, no lengthy investigations into alleged misconduct, no costly litigation, just an early resolution. (Bliss!).

Mediation is especially effective if used early, before parties become entrenched in their positions. It can allow issues to be nipped in the bud.  In the context of workplace disputes it can be used in any situation from a disagreement between senior managers and support staff, threatened legal action, to conflicts with third parties such as office suppliers.  Mediation has a particular resonance in the workplace, and the process has already been embraced by BT plc, West Midlands Police, Salisbury Cathedral and the Ministry of Justice to name but a few.

A guide jointly produced by ACAS and CIPD[4] includes some poignant examples of how mediation has helped to resolve disputes in the work place, and indeed how it can be implemented. It is essential reading. Even cases sometimes considered to be poor candidates for mediation – such as personal injury claims – are in fact suited to it.

What is mediation and why use it?

Mediation involves a neutral third party bringing two sides together with an aim of facilitating an agreement. The process is flexible, and inexpensive when compared with litigation. The parties set out their concerns in opening statements and the mediator will then speak with each party in separate caucuses to explore the issues with the intention of reaching a solution which is acceptable to both parties. If an agreement can be reached the terms will usually be recorded in a mediation agreement, drafted by the mediator, and signed by the parties.

The influential report on the future of Civil Litigation published by Sir Rupert Jackson, in January 2010, drives home the pro mediation message when he opined that:

Alternative dispute resolution (“ADR”) (particularly mediation) has a vital role to play in reducing the costs of civil disputes….ADR is, however, under-used…”[5]

We have found that mediation works in a variety of cases, from complex commercial matters (involving large sums of money) and workplace disputes, through to smaller property claims and partnership disputes.


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Filed under Employment Tribunal Focus, Mediation

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