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Initial Complaint Review and Mediation Scheme
Test for mediation - Post Office submission
Current test
“On the assumption that both parties will approach mediation in a
genuine attempt to reconcile their differences, is it reasonably
likely that mediation will lead to an agreed resolution of the
issues.”
Proposed new test
JFSA has proposed that cases should proceed to mediation where
mediation would allow the Applicant an opportunity to express their
concerns to Post Office.
Submission
This submission sets out extracts from documents that are relevant
to determining whether the proposed new test should be adopted in
place of the current test. For ease of reference, the extracts are
grouped by reference to the reasons advanced by Post Office in
favour of maintaining the current test.
This submission does not address the separate but closely related
question of who should apply the test: the Working Group or Second
Sight. It is understood that JFSA will shortly be submitting a
separate paper on the question of the Working Group's role in
deciding which cases proceed to mediation. Post Office will respond
to that issue once it has had sight of JFSA's paper.?
1. The test should filter cases
The Scheme envisaged that some cases would not proceed to mediation
and therefore it is acceptable to design a test that filters out
some cases. It also envisaged that some degree of judgment would be
exercised over the progress of individual cases through the Scheme.
On the assumption that there would be some filtering of cases at the
mediation stage, Post Office and the Working Group have not objected
1 JFSA's submission also highlights extracts from documents and makes comments
that are not related to the question of whether a case should proceed to mediation
(eg. it refers to the scope of Second Sight's reports). As those issues are
outside the scope of this submission, they are not commented on below
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to any case entering the Scheme (save where the case clearly did not
meet the eligibility criteria eg. the applicant was an employee of a
subpostmaster rather than a subpostmaster or crown employee).
The proposed new test would result in all cases proceeding to
mediation, with the effect that cases would proceed through the
Scheme without any exercise of judgment or control by anyone.
Case Review Mediation Pack? - Page 2, The Scheme - paragraph 5
“The Working Group's role is to ensure the Scheme is run ina
fair and efficient manner. It will also be involved in making
decisions on how particular cases should be managed through
the Scheme."
"As a result of this investigation, Second Sight will produce
a Case Review summarising its findings and a recommendation on
whether the case is suitable for mediation."
Case Review Mediation Pack - Page 8 - FAQs
"Will my case definitely be referred to mediation?
[..] the Working Group may consider that some cases are not
suitable for mediation. For example, if there is insufficient
information about a case or the case is not one requiring
resolution."
Working Group Terms of Reference?
Role of the Working Group
"4.4 To review at each stage Applicants’ cases that may not be
suitable for the Scheme and to decide whether and/or how
those cases may proceed."
2? The Case Review Mediation Pack was and remains publicly available to download
from the JFSA website and was the initial documentation sent to potential
applicants about the Scheme
3 In its submission, JFSA has commented that the phrase “particular cases" means
that only some cases should be managed through the Scheme. This phrase is in fact
a reference to the notion that all cases will be managed on case by case basis
depending on their individual circumstances.
4 The Working Group Terms of Reference have been approved by all members of the
Working Group.
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JFSA letter to the Minister for Postal Affairs dated 16 April
2014 - 5*® bullet
"You will probably be aware that the way the Scheme was meant
to work was as follows:-
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The completed 2" Sight Case Review Report, together with their
conclusion and recommendation about the case would then be
returned to the WG for either approval of the case being sent
to CEDR, the Case Resolution and Dispute Resolution [sic]
organisation appointed to run the Mediation process, or for
its outcome to be discussed further by the WG"
2. The objective of mediation is to seek resolution
Mediation is a process of finding solutions. It is therefore not
appropriate for cases where the possibility of a resolution is
unlikely. The proposed new test does not reflect the nature and
intention of mediation.
Case Review Mediation Pack - Page 8 - FAQs
"What is mediation?
In essence, mediation is a face-to-face discussion between two
parties. The discussion is chaired by a neutral and
independent mediator.
The purpose of mediation is to give each side the opportunity
to explain their position. The mediator will then discuss
matters with both parties, sometimes together in the same
room, sometimes privately with each party.
The mediator's role is to help the parties find common ground.
Where common ground cannot be reached, the mediator will help
the parties identify their differences and then try to find a
resolution to those differences." [emphasis added].
Working Group Terms of Reference
"3.1 The Scheme's overall objective is to try to achieve the
mutual and final resolution of an Applicant's concerns
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about Horizon and any associated issues (including any
related monetary claims)."
Halsey v Milton Keynes General NHS Trust*
Dyson Ld:
""28. [..]The question whether there was a reasonable prospect
that a mediation would have been successful is but one of
a number of potentially relevant factors which may need
to be considered in determining [whether it is reasonable
to mediate]. [..]"
3. Efficient use of resources
The Scheme funding arrangements are split into two phases so to
reflect the fact that some cases would not proceed to mediation.
The Working Group is also charged with managing scarce Scheme
resources given that the Scheme is funded from the public purse. It
is therefore appropriate that the test for mediation reflects the
need to avoid incurring costs for little / no benefit. Any
departure from this principle would need to be escalated through the
appropriate governance channels at Post Office.
Working Group Terms of Reference
Objectives of the Scheme
"3.7 The Scheme will be funded predominantly by Post Office
and must therefore ensure value for money for taxpayers."
Role of the Working Group
"4.6 To manage the administration of the Scheme so as to
ensure that the Scheme's processes and procedures are
offering value for money for taxpayers..."
Case Review Mediation Pack - Page 4 - Support for
subpostmasters
"Post Office will provide a financial contribution of:
5 [2004] EWCA Civ 576 - this is the leading case on when it is reasonable to refuse
to mediate a civil dispute.
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e up to £1,500 + VAT towards the reasonable costs of a
professional advisor assisting a Subpostmaster during
Second Sight's investigation (ie. gathering information,
completing the Case Questionnaire, responding to Second
Sight's questions, etc.)
e up to £750 + VAT towards costs of a professional advisor
in preparing for and attending a half-day mediation or up
to £1,250 + VAT for a full day mediation."
Halsey v Milton Keynes General NHS Trust
Dyson LJ:
"21. [Cost] is a factor of particular importance where, on a
realistic assessment, the sums at stake in the litigation
are comparatively small. A mediation can sometimes be at
least as expensive as a day in court. The parties will
often have legal representation before the mediator, and
the mediator's fees will usually be borne equally by the
parties regardless of the outcome (although the costs of
a mediation may be the subject of a costs order by the
court after a trial). Since the prospects of a successful
mediation cannot be predicted with confidence (see
further para 27 below), the possibility of the ultimately
successful party being required to incur the costs of an
abortive mediation is a relevant factor that may be taken
into account in deciding whether the successful party
acted unreasonably in refusing to agree to ADR®."
4. Merits of the case
The Scheme envisaged that some cases would lack sufficient merit or
information to proceed to mediation. The current test reflects
these factors whereas as the proposed new test does not.
Case Review Mediation Pack - Page 5 - FAQs
"My case is very old. Can I still mediate it?
Post Office's records only date back seven years and therefore
it may be more difficult to investigate very old cases unless
you are able to provide information and documents.
© ADR - Alternative Dispute Resolution the leading form of which is mediation.
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If your case is very old, you may still submit it to Second
Sight for consideration. However it may be decided by the
Working Group that your case is not suitable for investigation
or mediation." [emphasis added]
Case Review Mediation Pack - Page 7 - FAQs
"Will my case definitely get investigated by Second Sight?
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If there is insufficient information for Second Sight to
investigate a case, the case may not be investigated or may
not proceed to mediation."
Working Group Terms of Reference
Role of the Working Group
"4.9 It is not the role of the Working Group to collectively
render any opinion on the merits and/or settlement of any
Applicant's complaint. However, the Working Group may
consider the merits of any Applicant's complaint in order
to administer the progress of that complaint through the
Scheme." [emphasis added]
Halsey v Milton Keynes General NHS Trust
Dyson Ld:
"18. The fact that a party reasonably believes that he has a
strong case is relevant to the question whether he has
acted reasonably in refusing ADR. If the position were
otherwise, there would be considerable scope for a
claimant to use the threat of costs sanctions to extract
a settlement from the defendant even where the claim is
without merit. Courts should be particularly astute to
this danger. Large organisations, especially public
bodies, are vulnerable to pressure from claimants who,
having weak cases, invite mediation as a tactical ploy.
They calculate that such a defendant may at least make a
nuisance-value offer to buy off the cost of a mediation
and the risk of being penalised in costs for refusing a
mediation even if ultimately successful."
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5. Alternatives to mediation
It was envisaged that some cases could be considered through more
appropriate alternative routes, such as direct contact between an
Applicant and Post Office. Although the current test may result in
a case not proceeding to mediation, this does not leave the
Applicant with no route to resolution.
Case Review Mediation Pack - Page 2, The Scheme - paragraph 6
",...Post Office may contact a Subpostmaster directly to
discuss the Case Review and to seek closure of any outstanding
issues. If a solution cannot be reached directly between Post
Office and the Subpostmaster, both parties may then be invited
to attend mediation. {emphasis added]
Case Review Mediation Pack - Page 8 - FAQs
"Will my case definitely be referred to mediation?
[..Jonce Second Sight has submitted its findings, Post Office
may contact you to discuss your case and to seek a resolution
without needing to attend mediation.
If your case is not referred to mediation, then you may still
pursue other methods of resolution such as by bringing a claim
through the Courts."
Working Group Terms of Reference
Objectives of the Scheme
"3.3 Where appropriate, the Scheme must offer a reasonable
forum, by way of mediation or through direct discussions, for
an Applicant and Post Office to seek a resolution of that
Applicant's legitimate concerns." [emphasis added]
6. Hearing an Applicant's complaint
JFSA has advocated all cases going to mediation on the grounds that
Applicants should have an opportunity to present their complaint to
Post Office. However, the investigation phase of the Scheme already
provides this opportunity to Applicants without the need for all
cases to go to mediation.
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Case Review Mediation Pack - Page 2, The Scheme
"The starting point for the Scheme is for Subpostmasters to
submit details of their case to Second Sight as part of an
initial application process. Second Sight, in collaboration
with the Working Group, will recommend whether the case should
be investigated.
Second Sight will then work with each Subpostmaster and Post
Office to gather information about and investigate that case.
The Subpostmaster will be sent a Case Questionnaire setting
out requests for more detailed information. Post Office will
also provide additional information from its own records."
7. Distress to Applicants
The Scheme recognises that mediation will be unfamiliar for
Applicants. Indeed, some Applicants have suggested that interacting
with Post Office can be emotionally difficult.
It would be unconscionable for a case to be put forward for
mediation knowing that the prospects of a resolution are minimal.
It may cause greater emotional distress for Applicants to be sat in
a room with Post Office, with an expectation that comes with
mediation that their case is to be resolved, when in fact that will
not happen.
Case Review Mediation Pack - Page 4
"Post Office recognises that mediation will be unfamiliar to
many Subpostmasters. It is therefore prepared to make a
financial contribution towards the reasonable costs of a
professional advisor (such as a lawyer or an accountant)
supporting a Subpostmaster through the Scheme."
WG Minutes of Meeting on 30 January 2014
"Alan bates raised an issue with the Working Group
correspondence issuing on Post Office headed paper. Alan
explained that this was causing applicants distress and he
asked if it would be possible to send on a plain Working Group
header in future. This was agreed."
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Halsey v Milton Keynes General NHS Trust
Dyson LJ:
"10. If the court were to compel parties to enter into a
mediation to which they objected, that would achieve
nothing except to add to the costs to be borne by the
parties, possibly postpone the time when the court
determines the dispute and damage the perceived
effectiveness of the ADR process. If a judge takes the
view that the case is suitable for ADR , then he or she
is not, of course, obliged to take at face value the
expressed opposition of the parties. In such a case, the
judge should explore the reasons for any resistance to
ADR . But if the parties (or at least one of them) remain
intransigently opposed to ADR , then it would be wrong
for the court to compel them to embrace it."
8. The proposed new test is inappropriate for criminal cases
Adopting the proposed new test would result in cases where an
Applicant has pleaded guilty or been found guilty of a criminal
offence proceeding to mediation. Where there is no evidence to
suggest that that conviction is unsafe, it would be inappropriate to
put those cases through mediation being a process premised on the
assumption that there are genuine points to be disputed and
resolved.
Simply putting such cases through mediation raises the question of
whether there are questions to resolve, which in turn risks the
safety of what otherwise would be valid convictions.
By contrast, the Scheme envisaged that such cases would be most
appropriately dealt with through the criminal courts.
Parliamentary Debate on Horizon - Hansard - 9 July 2013
Column 200
"Parliamentary Under-Secretary of State for Business,
Innovation and Skills (Jo Swinson):
[4]
On convictions, it is up to individuals to go through the
usual judicial processes if they are concerned about the
safety of a conviction, and that can be done through the Court
of Appeal. Clearly, if any evidence were to come to light that
had an impact on the safety of convictions—I stress that that
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has not happened as a result of this interim report—Post
Office Ltd would have a duty to look further at those issues
as a prosecuting authority to ensure that convictions remain
safe."
Case Review Mediation Pack - Page 2, The Scheme
“What if my case involves a completed criminal prosecution or
conviction?
You may put your case through the Scheme even if you have
already received a Police caution or have been subject to a
criminal prosecution or conviction.
However, Post Office does not have the power to reverse or
overturn any criminal conviction - only the Criminal Courts
have this power.
If at any stage during the Scheme, new information comes to
light that might reasonably be considered capable of
undermining the case for a prosecution or of assisting the
case for the defence, Post Office has a duty to notify you and
your defence lawyers. You may then choose whether to use that
new information to appeal your conviction or sentence."
9. No public commitment to the proposed new test
Neither Post Office nor the Working Group have ever committed to the
new test proposed by JFSA (or any similar such test). In
particular, there is nothing supporting the new proposed test in any
of the following documents:
* Mediation Scheme Briefing Pack
¢ Working Group Terms of Reference
e Letters to Applicants
e Parliamentary debates on Horizon
e Post Office press releases
10. The current test is already approved and proven to be workable
The current test was debated at the Working Group meeting on 16 June
2014 at which time members of the Working Group unanimously agreed
to the current test. That test was then implemented in the case of
M054 and proven to be workable.
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WG Minutes of Meeting on 16 June 2014
"3.2 It being apparent that the matter of whether the Working
Group should recommend M054 for mediation might proceed
to a vote, the Working Group agreed the test the Chair
should consider if called upon to use his casting vote
as:
. ‘On the assumption that both parties approach
mediation in a genuine attempt to reconcile their
differences. Is it reasonably likely that the
parties will reach an agreed resolution of their
issues.'
he) The Working Group then moved to a vote on whether
case M054 should be recommended for mediation."
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