The recent increase in Court issue fees (particularly for those cases involving disputes over more than £10,000.00) may be seen as an attempt by HMCTS to 'strongly discourage' Claimants from issuing claims without having first attempted to settle the matter, perhaps through the use of mediation.  The increase in Court issue fees may also encourage Defendants to attempt to settle matters earlier, given that the higher Court fees may ultimately form part of the legal fees they have to pay/reimburse if they lose at Court, or after the claim has been issued at Court.

In addition to the Government indirectly encouraging the parties to consider mediation, the Courts have a number of ways they too can encourage a reluctant party to consider using mediation, including:
  1. Judges, particularly at Case Management Conferences, can offer strong encouragement to the parties to use mediation;
  2. Judges can make an Order directing the parties to consider ADR, in particular mediation.  In some cases robust Judges may direct the parties to make contact with a mediator.  Whilst compulsory consideration of mediation may be used in matrimonial/family disputes, it is not yet usually part of the civil litigation procedure;
  3. The Court can Order a stay in the proceedings for the parties to attempt to resolve the dispute by ADR, including mediation;
  4. The Court can assist the parties to use mediation or other ADR by making orders for advance disclosure of information/documents;
  5. At the end of the matter, Judges can make adverse costs Orders or be creative in costs Orders, to mark their disapproval of a party who unreasonably refused to use mediation.