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Small Claims Mediation
What Is Small Claims Mediation?
Small claims mediation is a free service offered by His Majesty's Courts and Tribunals Service (HMCTS) to help parties in small claims disputes reach a settlement without going to a court hearing. The service is available for all defended small claims cases in England and Wales.
Court mediation involves an independent, trained mediator who speaks to both parties by telephone. The mediator does not take sides or make a decision about who is right or wrong. Instead, they help both parties explore possible solutions and reach an agreement that works for everyone.
Mediation in small claims court is entirely voluntary - neither party can be forced to participate. However, judges strongly encourage it, and since April 2024, for claims under £500, mediation is now automatically arranged unless either party opts out with good reason.
Key Facts About Small Claims Mediation
- Completely free - no charge to either party
- Conducted by telephone (usually one hour)
- Available for all defended small claims
- Mediator is impartial and trained by HMCTS
- Agreement reached is legally binding
- If it fails, your case continues to a hearing
How Does Court Mediation Work?
The Small Claims Mediation Service is run by HMCTS and uses trained mediators who are experienced in helping people resolve civil disputes. Here is what happens at each stage:
Referral to Mediation
When a claim is defended and allocated to the small claims track, the court will ask both parties (on the Directions Questionnaire, form N180) whether they are willing to try mediation. If both parties agree, the case is referred to the Small Claims Mediation Service. For claims under £500, a mediation appointment is automatically arranged.
Appointment Arranged
The mediation service will contact both parties by letter or email to arrange a date and time for the mediation session. You will usually be given at least 14 days' notice. The session is conducted entirely by telephone - you do not need to attend court or meet the other party in person.
The Mediation Call
The mediator will call you at the appointed time. The session lasts up to one hour. The mediator will typically speak to each party separately first to understand their position, then go back and forth between the parties to explore possible solutions. You will not usually speak directly to the other party during the call.
The mediator may ask you to explain what happened, what evidence you have, and what outcome you would be willing to accept. They will then relay relevant information to the other side and try to find common ground.
Reaching Agreement (or Not)
If both parties agree on a resolution, the mediator will record the terms of the agreement. This becomes a legally binding contract. If no agreement is reached within the hour, the mediation ends and the case continues to a court hearing as normal.
Benefits of Mediation vs Going to Court
There are significant advantages to resolving your dispute through mediation rather than proceeding to a court hearing:
Mediation
- Completely free
- Takes just one hour by phone
- No travel to court
- Less stressful than a hearing
- You have control over the outcome
- Can preserve business relationships
- Private and confidential
Court Hearing
- No additional fee but time-consuming
- May need to take a day off work
- Travel to court required
- Can be stressful and adversarial
- Judge decides - you have no control
- Risk of losing entirely
- Longer wait for a hearing date
HMCTS reports that approximately 65-70% of small claims mediations result in a settlement. Even if you do not reach a full agreement, the process often narrows the issues in dispute, which can make any subsequent hearing quicker and simpler.
What to Prepare for Mediation
Good preparation is the key to a successful mediation. While the process is informal, you should treat it seriously and have everything you need to hand before the call. Here is a checklist:
Mediation Preparation Checklist
Gather all relevant documents
Contracts, invoices, receipts, emails, photographs, text messages - anything that supports your case
Write a summary of your case
A clear, chronological account of what happened and why you believe you are owed money (or why you dispute the claim)
Know your figures
Be clear about the total amount claimed, how it breaks down, and what you have already paid or received
Decide your bottom line
Before the call, think about the minimum amount you would be willing to accept (or pay). This is private - you do not have to share it with the mediator
Consider creative solutions
Mediation allows flexible outcomes that a court cannot order - such as an apology, a partial refund with repair work, or a payment plan
Find a quiet place for the call
You need to be somewhere private where you can talk freely for up to an hour without interruption
Have authority to settle
If you are representing a business, make sure you have authority to agree a settlement on the spot. The mediator cannot adjourn for you to "check with someone"
What Happens During the Mediation Session
Understanding the structure of the mediation call will help you feel more confident. Here is a typical breakdown of how the hour is spent:
Opening (5-10 minutes)
The mediator calls the claimant first and explains the process, ground rules, and confidentiality. They will confirm that you are willing to participate and have authority to settle. The same introduction is then given to the defendant.
Exploration (15-20 minutes)
The mediator asks you to explain your side of the dispute. This is your chance to set out what happened, what you have tried to do to resolve it, and what outcome you are looking for. The mediator will then speak to the other party to hear their version. Everything you say is confidential unless you give permission for it to be shared.
Negotiation (20-30 minutes)
The mediator goes back and forth between the parties, relaying offers, counter-offers, and information (with permission). They may suggest ideas or highlight areas of agreement. This is the most active part of the session and where most progress is made.
Closing (5-10 minutes)
If agreement is reached, the mediator records the terms and reads them back to both parties for confirmation. Both parties confirm their agreement over the phone. If no agreement is reached, the mediator explains what happens next (the case proceeds to a hearing).
Important tips during mediation:
- Stay calm and professional, even if you feel frustrated
- Listen to what the mediator says - they are trying to help
- Be realistic - a compromise usually means neither side gets everything
- Do not lie or exaggerate - the mediator will quickly lose trust
- Remember: anything said in mediation cannot be used in court if it fails
What Happens If Mediation Fails?
If mediation does not result in an agreement, your case simply continues through the court process as if mediation had never taken place. There is no penalty for mediation failing. Specifically:
- The judge will not be told what was discussed during mediation
- Any offers or admissions made during mediation cannot be used as evidence at the hearing
- The court will set a hearing date and issue directions for both parties to prepare
- You can still settle privately with the other party at any time before the hearing
However, if one party unreasonably refuses to engage with mediation at all (not the same as mediation failing), the judge may take this into account when deciding whether to award costs. This is rare in small claims, where costs are limited, but it is worth being aware of.
The Mediation Agreement
If mediation is successful, the terms agreed by both parties are recorded by the mediator and form a legally binding agreement. This is sometimes called a "Tomlin Order" or is recorded as a consent order by the court.
A mediation agreement can include terms that a court would not normally order, which is one of the key advantages. For example:
- Payment by instalments: Agreeing to pay a lump sum over several months
- Partial payment with additional work: For example, a builder refunds part of the cost and agrees to complete remedial work
- Apology or correction: The other party agrees to retract a statement or issue a correction
- Replacement or repair: Rather than a cash refund, the supplier agrees to replace or repair the goods
- Confidentiality clause: Both parties agree not to discuss the dispute publicly
If the other party fails to comply with the mediation agreement, you can enforce it as a court order. This means you have the same enforcement options as if you had won at a hearing - including warrants of control, attachment of earnings, and charging orders.
Make sure you fully understand and are happy with the terms before agreeing. Once the agreement is recorded, it is very difficult to change or challenge - it is treated the same as a court judgment.
Frequently Asked Questions
Is small claims mediation really free?
Yes. The Small Claims Mediation Service provided by HMCTS is completely free to both parties. There are no hidden charges. The service is funded as part of the court system.
Can I refuse mediation?
For claims of £500 or more, mediation is voluntary. You can decline without direct penalty, although a judge may view an unreasonable refusal unfavourably. For claims under £500, mediation is automatically arranged and you need a good reason to opt out. You cannot be forced to settle - only to participate in the process.
Do I need a solicitor for mediation?
No. The small claims mediation process is designed for individuals to handle themselves. You may have someone with you during the call for moral support, but the mediator will speak to you directly. You do not need legal representation.
What if I miss the mediation appointment?
If you miss the appointment without good reason, the mediation will be recorded as unsuccessful and the case will proceed to a hearing. The court may view a no-show unfavourably. If you have a genuine reason for missing the appointment (illness, emergency), contact the mediation service as soon as possible to rearrange.
Can I use private mediation instead?
Yes. You are free to use a private mediator instead of or in addition to the free court service. Private mediators may offer longer sessions or face-to-face meetings. However, you will need to pay for the service (typically £100-£300 per party for a small claims dispute). If both parties agree to private mediation, you can ask the court to stay (pause) proceedings while it takes place.
How long does it take to get a mediation date?
After both parties agree to mediate, the mediation service typically contacts you within 4-6 weeks to arrange a date. The actual session then takes place within a further 2-4 weeks. Overall, expect around 6-10 weeks from referral to mediation session.
What if the other party does not keep to the agreement?
If the other party breaches the mediation agreement, you can apply to enforce it as a court order. This gives you access to all the standard enforcement methods, including bailiffs, attachment of earnings, and third party debt orders. See our enforcement guide for details.
Can I still go to court if mediation fails?
Absolutely. If mediation does not result in an agreement, your case automatically continues to a hearing. Nothing you said or offered during mediation can be used against you in court. The judge will not be told what happened during the mediation session.
Related Guides
Quick Reference
Cost: Free (HMCTS Small Claims Mediation Service)
Duration: Up to 1 hour by telephone
Success rate: Approximately 65-70%
Binding: Yes, if agreement is reached
If it fails: Case continues to a hearing with no penalty
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