Closed: MOJ Consultation about mandatory ADR/Mediation in small claims

Coupon-mad

Hadn't seen this until now:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1093682/mediation-consultation-web.pdf

Closed on Tuesday 4th October.

This is about Mediation becoming mandatory in small claims cases.

Now this is my view:

For parking cases, that would work if 'Mediation' was a proper ADR (the bespoke parking 'Single Appeals Service' being set up by the DLUHC in 2023) and where the Appeals Charter and Code of Practice would be considered as well as the law (POFA (sch4) 2012, Equality Act 2010, Consumer Rights Act 2015, etc).

But Court Mediation in its current form - where the Mediator presumes there is a 'debt' and just bullies and pressurises parking case Defendants to offer money, telling them (wrongly) that their case is weak 'because of the Beavis case' - is absolutely unsuitable for private parking cases.

None of the examples shown are a parking case.

Why not, given a very high percentage of lower value Specified Moneyclaims are parking claims?

The difference with parking claims (setting them apart from the examples shown in the link) is that these are 'all or nothing' cases where the claim is often meritless and the Claimant is using the small claims track as an extreme but cheap form of debt collection to intimidate people to pay.

In DCBLegal parking claims, we have evidence that there appears to be no real intention of reaching a hearing.  There is no way that Claimants should be favoured by the Courts and Defendants 'leant on' to settle such cases.

In most cases the Defendant has a genuine dispute, has been denied a fair 'appeal' and hounded for years - and owes nothing at all.  These are Defendants who would invariably win at a hearing, as well-defended cases are won by Defendants against parking firms, or the Claimant discontinues. 

The only way to deal with them fairly  by ADR would be with reference to the incoming DLUHC parking Appeals Charter and the new regulatory Code of Practice.

And the experts in that will be the Single Appeals Service.

Let them do it.  The MoJ should consult with the DLUHC and put this in place as a court option ADR.

Coupon-mad

Calling all regulars!  Also those who have been put through Mediation by the court and know how unhelpful and Claimant-biased it was.

@Johnersh hopefully you will see this in time too.

What we need as well, is parking case examples written like the examples in the Consultation, to show the MoJ that such cases fall within the Appeals Charter and/or the new Code of Practice.

e.g. we should show the MoJ Fluttering ticket cases, VRM typos, Blue Badges or permits forgotten to be displayed.  Also cases with unclear signage.

All such things are covered snd resolved by applying the Appeals Charter, as long as those persons running the ADR are trained in using it and applying the rest of the new Government Private Parking Code, to sort out parking case disputes fairly.

That's why it must be outsourced to the DLUHC's bespoke Single Appeals Service. It would be absurd to provide people trying to robustly dispute an unfair private parking court claims with a lesser ADR than would have been on offer in the pre-action phase.

Inflicting standard Court Mediation (how much will you pay, Mr Defendant?') with its sadly inherent Claimant-bias and presumption that a debt is actually owed (which is not necessarily true with most private parking roboclaims) would also breach the Court's duty under s71 of the CRA:
https://www.legislation.gov.uk/ukpga/2015/15/section/71

"71. Duty of court to consider fairness of term(1)Subsection (2) applies to proceedings before a court which relate to a term of a consumer contract.(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it.(3)But subsection (2) does not apply unless the court considers that it has before it sufficient legal and factual material to enable it to consider the fairness of the term."
The duty to 'consider the fairness of the Term' (or Consumer Notice which the CRA also covers, must surely (in parking charge cases) require consideration of the applicable statutory Code of Practice, the Appeals Charter and the applicable laws cited by the Government in the Code's introduction.Our responses due today need to make it obvious that properly applying the Appeals Charter and Parking Code is going to be paramount for an ADR, otherwise Defendants will suffer pressure to pay unfair parking charges, which can't be right and goes against the will of Parliament, which is actively engaged in regulating this 'rogue' industry and their roboclaim enablers.

Le_Kirk

It is on my list and I have left the link open on my desk top so I don't forget.

ETA - Done
- and auto response received

Fruitcake

Done and confirmation received. I couldn't find an online method other than email, but I copied each question then provided an answer to each in turn.

I included points about mediation currently being biased towards the claimant, that there is no proven debt, that claims include fake add-ons referred to as an attempt at extortion by the former head of the DHLUC.
I also said that mediators in parking cases need to be legally trained so they understand things like the EA 2010, the PoFA 2012, S43 and 44 of the Companies Act 2006, the Landlord and Tenant Act, Byelaws and the difference between relevant and non-relevant land.
I mentioned s71 of the CRA and said mediation should only be carried out where ADR that complies with the ADR Regs 2015 have been carried out, pointing out that the parking industry does not offer an independent appeals service and what is offered is only available for 3 or 4 weeks as opposed to not less than twelve months as stated in the ADR Regs. I suggested that parking cases should be reset to ADR in accordance with the regs if this has not already been offered.

I am fairly certain I have covered the main concerns displayed on this forum.

Trainerman

Done and emailed, similar technique (and answers) to @Fruitcake

patient_dream

Also done and Fruitcake was my leader

1505grandad

As above  -  have had a busy day taking wife shopping, school run and other waiting for other people so only now been able to complete and email to:-

Disputeresolution.enquiries.evidence@justice.gov.uk

HOWEVER have not received an instant auto ack.  -  (email sent 15.31)  -  although did ask for "acknowledge receipt of your response".

Fruitcake

I had an email confirmation ten minutes after sending.

Trainerman

My acknowledgement took around ten minutes too

1505grandad

Now received at 16.07

Ed2022

Crikey I didn't see this. Will fill and send out now.

Is there a FAQ of how the question should be answered?