Is there a value to mediation in unlawful detention cases?

In January 2015 figures released by the Home Office following a Freedom of Information request reveal that 20 migrants have spent at least 722 days in detention under immigration powers. A snapshot of the situation in September 2014 showed that in total, 3,378 people are detained solely under Immigration Act powers.

The use of immigration detention has led to significant litigation. In a parliamentary answer of James Brokenshire on 1 December 2014 it was disclosed that the amounts paid by the Home Office in “compensation” following claims for unlawful detention were £4.5 million in 2011-12 , £5 million in 2012-13  and £4.8 million in 2013-14. Added to this will be very significant legal costs for both Claimants and Defendant as well as Home Office time and resources in managing litigation casework.

There is now a clear recognition by the Court that the parties must try and seek to resolve cases ideally without or, if this is not possible, at an early stage of litigation. Given this encouragement there is a “standard” direction that at all stages the parties are to consider settling the claim by any means of ADR including mediation. If a party declines to engage in ADR they need to serve a witness statement giving the reasons for so doing. This will then be a matter to be considered on costs and the Courts have been seen to be punitive in costs to “successful” parties who have, in the opinion of the Court, unreasonably refused to seek to resolve the dispute by way of mediation.

Mediation allows the parties to be brought together in a more relaxed but structured environment where they can freely and confidentially present their position in front of a neutral third party. It is an opportunity for both parties to hear the other party’s point of view. Not only can mediation achieve an early and cost effective way to resolve disputes but it can also achieve non-financial remedies such as an apology or at least a greater understanding of the perspectives of both parties to the claim.

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About helenc

mediator, barrister, restorative justice facilitator
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