Mediation, Not Litigation
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Mediation is the process whereby two or more people involved in a dispute come together with the help of a neutral third person to try and find a fair and workable solution to their dispute. This book explains how mediation works, and the advantages and disadvantages of mediation.
Mediation has a high success rate and is quicker than going to court, and certainly less expensive. It is also more satisfactory, as it can result in an agreed settlement over which you have total control. Whilst court proceedings polarize and destroy relations with the other side to a dispute, mediation allows you to get your point of view off your chest and then allow your relationship to continue.
The mediation process is flexible and informal, and has the objective of finding a solution which both parties can live, with rather than deciding rights and wrongs. As it will be an agreed solution, it is more likely to be complied with than if it had been imposed by a court. Mediation looks to the future and not to the past.
The aim of a mediation is to allow the parties to reach a solution themselves and not for the mediator to impose a settlement on them. If this is not possible and agreement cannot be reached, the mediation will come to an end and either party is free to start court proceedings, if they so wish. All that was said in mediation is confidential and cannot be disclosed to the court in subsequent proceedings.
Most disputes can be mediated, including those involving contracts, accident claims, debts, business ownership, employment, and family disputes over finances and children following divorce.
If you are in a dispute which you have not been able to resolve directly with the other side, this book will explain how mediation can be the answer and why you should consider it before court proceedings. It deals with the steps to be taken to prepare for the mediation, the mediation process and how the mediation is likely to be conducted, and finally finalising and enforcing the agreement reached.
This isn’t just a book explaining how to bring a small claim in the small claims court. There are many books and guides which show you how to do this. This book is about winning a case in the small claims court. Its purpose is to give you all that you need to successfully bring or defend a small claim.
The idea behind small claims is that small money claims should be dealt with informally by those involved, and without the need for the involvement of lawyers. The small claims court was set up to provide a simple and informal method of resolving disputes, without incurring heavy legal costs. The key words are ‘no fuss, no costs, and no appeal’. It is intended for and directed towards litigants in person.
Many of the rules which apply to other civil cases are either relaxed or not applied. In particular, the strict rules of evidence are not enforced, and disputes are decided by a district judge, with all the parties usually sitting around a table in his private room. The joy of the small claims court is that the disadvantage of the small man (or woman) who cannot afford to pay for legal representation against a large business who can is reversed.
This is all very good and fine but it presents hidden dangers. The relaxed informal procedures of a small claim may open up the courts to litigants in person (for that is what you will be considered), but cases will still be decided on the same principles as a multi-million-pound dispute in the High Court. The rules of evidence may be relaxed but cases will still turn on who is believed. The procedure to bring or defend a claim may be simplified, but it is the litigant who presents a well-prepared case who is more likely to be believed and therefore succeed. However good your case, if you present it in a half-cocked way you are not likely to win in the small claims court any more than anywhere else. Cases are won here just as much by careful preparation and good presentation as in any other court.
You are going to need a basic understanding of the law which relates to your case and an understanding of court procedure. A defendant needs to understand this, just as much as a claimant. The key is effective preparation, which will also give you the confidence needed to win by presenting your case effectively at trial.
The purpose of this book is to show you how to overcome these dangers and turn them upon your opponent. You have to not just prepare your case for court, but to prepare it in such a way that when it is looked at by a busy judge, what you are saying is immediately clear and puts you in his good books. Cases are decided on the evidence presented to the court, and the evidence you present must be compelling and directed at the legal issues relevant to your case. The court has a duty to ensure a level playing field, but some playing fields are more level than others. Yours must on all accounts be superior.
Just as important as knowing how and when to bring a small claim is to know when not to bring it and the alternatives. Even if you have a good case, there is no point if, at the end, you are not going to get your money. Also, what is unfortunately certain is that bringing a case will take up your time, and if you are a claimant there will be court costs to pay. You need to be certain that the time and money you spend on your case will be justified.
Below you will find all that you need to know to bring or defend a small claim in the county courts of England and Wales. It can be your guide at every step of the way, from deciding whether you have a case worth bringing or defending to presenting your case and enforcing a judgement. As you work through each section, there are hints and tips from experienced lawyers, who had conducted countless cases over the years. Should you still have questions having read the book, further help is available.
Chapter 1. The nature of a small claim 8
Small claims costs 9
Chapter 2. Is the small claims court for me? 12
Chapter 3. Alternative dispute resolution methods 13
Expert determination 16
Chapter 4. Is it going to be worth it? 17
Will you get paid if you win? 17
Chapter 5. Pre-action protocol 19
Letters before action 19
Chapter 6. Preparing your claim 21
The parties to a claim 21
The particulars (or statement) of claim 22
How much can you claim? 24
Chapter 7. Issuing your claim 27
Money claim online 27
Court fees 29
Hearing fees 30
Chapter 8. After issue 31
The allocation questionnaire 31
Chapter 9. Early judgement 34
Summary judgement 35
Striking out 36
Admissions, counterclaims and set-offs 37
Chapter 10. Defending a claim 38
Chapter 11. Case management 40
Requests for further information 42
Chapter 12. Proving your case 44
Expert evidence 45
Case law and legal precedent 47
Chapter 13. The hearing 48
Before the judge 50
McKenzie friends 54
Chapter 14. Appeals and re-hearings 57
Chapter 15. Enforcing judgement 59
Orders to obtain information (oral examination) 59
Warrant of control 60
Attachment of earnings orders 61
Third-party charging orders 63
Charging orders 63
Statutory demands 65
Chapter 16. Claims in contract 66
Chapter 17. Sale of goods 68
Chapter 18. Professional negligence 70
Chapter 19. Claims in tort 71
Personal injury claims 72
Occupiers’ liability 74
Chapter 20. Particular claims 75
Contractual disputes 75
Claims for an unpaid bill 75
Repayment of a loan 77
Claims for faulty goods 77
Claims for defective services 78
Building disputes 79
Motor vehicle repair claims 80
Motor vehicle purchase claims 80
Disputes between landlords and tenants 81
Appendix. Example claims 82
Claim against a builder for unfinished work 82
Claim in negligence against a builder 82
Claim against a motor dealer for a defective vehicle sold 83
Claim against a private individual for sale of a defective vehicle 83
Claim against a retailer for faulty goods 84
Claim for money loaned 85
Claim for damages resulting from a motor accident 86
Application to set aside a default judgement 87
Application for summary judgement 87
Further help 89