# Has compulsory small-claims mediation improved access to justice or created another procedural hurdle?
## Introduction
The pursuit of justice in civil matters has long been balanced against the principles of proportionality, speed, and cost. For low-value disputes, the cost of traditional litigation can often outweigh the sum in question, creating a significant barrier to justice. The small claims track in England and Wales was designed to offer a simplified, less formal, and more affordable route for resolving such disputes, primarily for claims valued under £10,000 (Civil Procedure Rules, r.27.1). In recent years, a significant policy shift has seen the introduction of compulsory mediation for these claims. This reform, which mandates that parties participate in a telephone mediation session before their case can proceed to a final hearing, has been presented by the Ministry of Justice (MoJ) as a major step towards improving access to justice.
This essay will examine the arguments for and against this move to compulsory mediation. It will explore whether the policy successfully enhances access to justice by providing a cheaper and faster alternative to court, or whether it functions as an additional procedural hurdle that can delay resolution, create pressure on vulnerable litigants, and undermine the principle of a ‘day in court’. This essay will argue that while compulsory mediation has the potential to benefit some litigants by offering a streamlined resolution, there are substantial concerns that it may create new barriers, particularly for unrepresented parties facing opponents with greater resources. Therefore, its overall impact is mixed, and its contribution to access to justice is not as clear-cut as its proponents suggest.
## The Drive Towards Compulsory Mediation
The introduction of compulsory mediation is the latest development in a long-standing effort to integrate Alternative Dispute Resolution (ADR) into the fabric of the civil justice system. The Woolf Reforms in the late 1990s placed a significant emphasis on encouraging parties to settle disputes outside the courtroom, with the overriding objective of the Civil Procedure Rules (CPR) being to enable the court to deal with cases justly and at proportionate cost (CPR, r.1.1). However, the judiciary traditionally showed a reluctance to compel unwilling parties to mediate. The landmark case of *Halsey v Milton Keynes General NHS Trust* [2004] EWCA Civ 576 established the principle that forcing parties into mediation could constitute an unacceptable obstruction of their right of access to the court, which is protected under Article 6 of the European Convention on Human Rights (ECHR). For many years, the primary tool for encouraging ADR was the use of adverse costs orders against a party who unreasonably refused to mediate (Dyson LJ in *Halsey*, at [13]).
This position has gradually eroded over time due to increasing pressure on court resources and a growing belief in the effectiveness of mediation. The Civil Justice Council (CJC) has published several reports advocating for a more integrated approach to dispute resolution, suggesting that ADR should no longer be seen as ‘alternative’ but as a key part of the process (CJC, 2018). The MoJ built on this momentum, launching a call for evidence in 2021 on the role of mediation in resolving civil disputes. Its subsequent response confirmed its intention to make mediation compulsory for all small claims, framing it as a way to help parties “resolve their disputes more quickly and cheaply” (MoJ, 2022).
The scheme, which began to be rolled out in 2023 for specified money claims and is intended to cover all standard small claims, automatically refers parties to a free, one-hour telephone mediation session with a mediator provided by HM Courts and Tribunals Service (HMCTS) after a defence is filed. Sanctions, such as striking out the claim or defence, can be applied for non-attendance. This move was bolstered by the Court of Appeal’s recent judgment in *Churchill v Merthyr Tydfil County Borough Council* [2023] EWCA Civ 1416. In a departure from *Halsey*, the court held that judges can lawfully order parties to engage in mediation or another dispute resolution process, provided the order does not impair the “very essence” of the claimant’s right to a court hearing and is proportionate to the legitimate aim of settling the dispute fairly, quickly, and at a reasonable cost. This ruling has provided the legal foundation for making mediation a mandatory step, rather than just an encouraged option.
## The Potential for Improved Access to Justice
The primary argument in favour of compulsory mediation is that it enhances access to justice by making the resolution of disputes more accessible, affordable, and efficient. Proponents, including the MoJ, suggest that it directly addresses some of the most significant barriers that litigants, especially litigants in person (LiPs), face in the court system.
A key benefit is cost. Small claims are intended to be a ‘no costs’ track, meaning legal costs are generally not recoverable from the losing party, but the process is not free. Court fees, travel expenses, and time taken off work can still represent a substantial financial burden. Compulsory mediation offers a free-at-the-point-of-use service that can lead to a settlement, thereby avoiding the costs associated with preparing for and attending a final hearing. The government’s impact assessment projected that the policy would save litigants money and allow the courts to focus resources on more complex cases that require a judicial determination (MoJ, 2022). By resolving disputes earlier, the process is made more proportionate to the amounts at stake, aligning with a core principle of access to justice.
Speed is another significant factor. Waiting for a small claims hearing can take several months, a period which can be stressful and uncertain for the parties involved. In contrast, a mediation appointment can be scheduled and completed within a few weeks of a defence being filed. As the Civil Justice Council (2021, p. 5) has noted, “for most people, a fair and just resolution is not a day in court… but a fair, cost-effective and speedy outcome”. For individuals or small businesses seeking to recover an unpaid debt, a quick settlement through mediation is often a far more practical and just outcome than a protracted court battle, even if that battle is ultimately successful.
Furthermore, mediation can be less intimidating than a formal court hearing. The adversarial nature of litigation can be challenging for LiPs, who must navigate procedural rules and present their case before a judge. A telephone mediation session is a more informal and collaborative process. The mediator’s role is to facilitate a conversation and help the parties explore a potential settlement, rather than to make a judgment. This less formal environment can empower parties to express themselves more freely and have a greater sense of control over the outcome. The solutions available in mediation can also be more flexible than court-ordered remedies, allowing for agreements on payment plans or non-monetary resolutions that a judge may not have the power to order. This flexibility can lead to more durable and satisfactory outcomes for both sides (Mackie, Miles and Marsh, 2000).
## Concerns of a New Procedural Hurdle
Despite the potential benefits, compelling parties to mediate has drawn significant criticism. Opponents argue that instead of improving access to justice, the mandatory nature of the scheme risks creating an additional, and sometimes pointless, procedural hurdle that can delay justice and disadvantage vulnerable parties.
A fundamental objection relates to the principle of compulsion itself. Forcing unwilling parties into a process that relies on cooperation seems counter-intuitive. There is a concern that if parties are not genuinely invested in reaching a settlement, the one-hour session will simply be a “tick-box exercise” they must endure before they can proceed to court (Genn, 2012). This adds an extra step and an inevitable delay to the process for those with cases that are not suitable for mediation or where one party has no intention of compromising. While the *Churchill* judgment has now confirmed that compulsion is lawful, the court was careful to state it must be proportionate and must not block access to the courts. The mandatory nature of the small claims scheme, with its threat of sanctions, could be seen as sitting at the very edge of this principle.
The most serious concern relates to power imbalances. A significant number of small claims involve a LiP against a well-resourced and legally represented party, such as a bank, landlord or large company. In a courtroom, a judge can ensure procedural fairness and help to level the playing field. In a private mediation, however, the playing field can be far from level. The mediator is a neutral facilitator and is not permitted to give legal advice or protect one party from making an unwise decision (Moorhead and Hinchly, 2015). A vulnerable LiP may lack the confidence or knowledge to negotiate effectively and could be pressured into accepting an unfair settlement by a more sophisticated or aggressive opponent. This raises a serious access to justice issue: is justice being served if a party agrees to an outcome that is significantly worse than what they might have achieved in court, simply because they did not understand their rights or felt intimidated?
Finally, the policy can be seen as undermining the right to a public hearing and judicial determination. For some litigants, the principle of having their case heard and decided by a judge is a crucial aspect of justice. They may seek public vindication or the establishment of a principle, something a private, confidential settlement cannot provide. Forcing such individuals into a private resolution process which they have not chosen can feel like a denial of their ‘day in court’. While the *Churchill* decision suggests this is not an absolute right that can never be constrained, the psychological impact on litigants who feel pushed away from the courts should not be underestimated. It can lead to a perception of a “second-class” justice system for smaller claims, where efficiency is prioritised over the right to a full judicial hearing (Genn, 1999). The limited, one-hour telephone format may also be insufficient to properly explore the nuances of anything other than the most straightforward debt claims, reinforcing the idea that it is a procedural formality rather than a genuine attempt at resolution.
## A Balanced Assessment of the Impact
In assessing the overall impact, it becomes clear that compulsory mediation is neither a panacea for the problems of the civil justice system nor is it simply a new bureaucratic obstacle. Its effect on access to justice is varied and depends heavily on the nature of the dispute and the parties involved.
On the one hand, the government’s objectives of reducing court backlogs and offering a cheaper, faster route to resolution are valid and important aspects of securing practical access to justice. For a large proportion of small claims, which are straightforward disputes over money, a mandatory early intervention that encourages settlement is a sensible and proportionate step. Many parties may not have considered mediation or may have been reluctant to suggest it for fear of appearing weak. The compulsory nature of the scheme pushes them towards a process that has a high success rate when entered into willingly and can deliver the swift, cost-effective outcome that many litigants desire. In these cases, it undoubtedly improves access to justice.
On the other hand, the concerns about power imbalances and the potential for unfair outcomes are significant. The success of the scheme depends on a ‘just’ process, not just an efficient one. Without adequate safeguards to protect vulnerable LiPs, there is a real danger that compulsory mediation could lead to injustice for the very people the small claims track was designed to help. The quality of the mediators and the clarity of the preliminary information provided to parties will be crucial in mitigating these risks. It must be made clear to litigants that they are not obliged to settle and that the court process remains available to them. The decision in *Churchill* provides a legal green light for compulsion but also a warning: it must not impede the core right to a judicial hearing. The blanket, one-size-fits-all nature of the small claims scheme may be challenged in the future as being disproportionate for certain types of cases or individuals.
Ultimately, the policy reflects a pragmatic but also ideologically driven shift in how civil justice is conceived. The focus is moving away from judicial determination as the default and towards managed resolution processes. While this is not inherently negative, it redefines what “access to justice” means. The question remains whether this new definition fully serves the interests of all court users, or whether it primarily serves the administrative interests of the state in managing its court system (Zuckerman, 2013).
## Conclusion
In conclusion, the question of whether compulsory small-claims mediation has improved access to justice or created another procedural hurdle does not have a simple answer. The policy is a double-edged sword. For many parties involved in straightforward debt or consumer disputes, the mandatory referral to a free and quick mediation session is likely to be a positive development, improving their access to a practical and proportionate resolution. It successfully lowers the barriers of cost and delay that are central to the problem of access to justice in low-value claims.
However, for a significant minority, particularly vulnerable and unrepresented litigants, the policy risks becoming another procedural burden. The compulsion to mediate without adequate support or legal advice can create pressure to accept unfair settlements, turning the process from a tool of justice into a potential instrument of injustice. The risk of power imbalances in a private forum, combined with the loss of a ‘day in court’, means that for these individuals, compulsory mediation may feel less like an opportunity and more like an obstacle. The long-term success of the policy will therefore depend on careful monitoring and the implementation of safeguards to protect those who are most at risk of being disadvantaged. As it stands, compulsory mediation represents a bold but imperfect attempt to rebalance the scales of civil justice, and its claim to have unequivocally improved access to justice remains open to debate.
## References
- Civil Justice Council (2018) ADR and Civil Justice: A report by the ADR Working Group. London: Civil Justice Council.
- Civil Justice Council (2021) Compulsory ADR: A report by the ADR Working Group. London: Civil Justice Council.
- Genn, H. (1999) Paths to Justice: What People Do and Think About Going to Law. Hart Publishing.
- Genn, H. (2012) ‘What Is Civil Justice For? Reform, ADR, and Access to Justice’, Yale Journal of Law & the Humanities, 24(1), pp. 397-417.
- Mackie, K., Miles, D. and Marsh, W. (2000) The ADR Practice Guide: Commercial Dispute Resolution. 2nd edn. Tottel Publishing.
- Ministry of Justice (2022) Dispute Resolution in England and Wales: Government Response to the Call for Evidence. CP 697. London: Ministry of Justice.
- Moorhead, R. and Hinchly, V. (2015) ‘The “Right” to Litigate, the “Right” to Settle and the “Responsibility” to Mediate’, Civil Justice Quarterly, 34(3), pp. 310-330.
- Zuckerman, A. (2013) Zuckerman on Civil Procedure: Principles of Practice. 3rd edn. Sweet & Maxwell.
**Legislation and Cases**
- Civil Procedure Rules 1998
- Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416
- Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576
