We had a typical enquiry this morning from someone going through the small claims court:
I have a claim in the small claims court. I’ve just submitted my directions questionnaire. The defence has declined mediation. How can you help?
Unfortunately there is no way of compelling the other party to use mediation. There is a rudimentary free small claims mediation service available for small claims. It is not as detailed as our telephone mediation service. There are only a limited number of Court mediation staff available in the UK (approximately 16!)
If the other party ticks the box to say that they don’t want to use mediation, the Court will not make them. They have not opted in. Your only option then is to formally invite them to mediate and show this to the Court at the end of the proceedings. The Court can then take this into account when it comes to any costs incurred. We can also write or contact the other party to invite them to mediate. The same applies in higher value cases although there is more of a costs risk if there is a failure to mediate.
It may be that in future this changes to an opt out system, and I am on the liaison committee looking into this. If the other party is a trader it is an offence to fail to provide details of an ADR Provider if a complaint reaches deadlock (but again there is no obligation to use ADR). We always recommend trying mediation before proceedings as, like in this case, people may be less inclined to mediate once they have been issued.