Northampton Claim by Lowell/Vanqius *** Claim Struck Out ***

[Alloyz1]

From what I have read so far, I think mediation does not work for small claims, my stand with them in the defence is to provide proofs of debts and breakdown of total outstanding amount. . If Lowell is not providing these.. how would I know what to negotiate in the mediation. . Could I just refuse mediation based on this ? Or would it stand against me if we proceed to court ?

 

Hi Rita

 

I disagree mediation does not work in small claims.

 

It is the approach of the parties that often hinders settlement. If you go into it thinking unless they produce this and that then I won't settle, I agree it won't work. You need to consider 'what if it went against me in court, what would it be worth to avoid that'...

 

If you refuse to mediate, it cannot be be viewed any other way but negative. Plus what do you have to lose?

 

One thing I have learned through defending several claims (all which settled in mediation) is we all think our case is strong but the reality is the final decision lies with the judge as opposed to you in mediation.

 

I have the advantage of being a qualified mediator but would advocate it through experience of my defending claims.

 

A

[Alloyz1]

I would prefer not to comment on your case as I am not experienced enough to give sound advice, so in relation to what to say, it would be over to CB or Andy.

 

As for mediation, you really need to use it as an opportunity to bring closure on your terms if that is your ultimate goal. It's easy to get blinded by the fight and lose sight of the fact you want this to be settled.

 

Go into it with a basic outline of your case and set yourself some goals, a total value you would settle at, over how many months, Tomlin Order or Mediation Agreement.

 

At least you have a degree of control in mediation that you lose in court, you get to negotiate, counter offer and size up the other party. In court you have judgement imposed, end of.

 

Don't get me wrong, if you have a cast iron case that cannot fail, you are on to a win win, but I haven't seen many of those but Andy and the other people will advise you on that.

 

Think seriously about mediation it's a great way to bring closure, on your terms with an affordable settlement and no adverse judgements.

 

A

[Alloyz1]

Is it telephone mediation? 1hr free from court?

[Alloyz1]

Having a quick read of your thread and I will post shortly

[Alloyz1]

Hi Rita- Hope you are well.

 

CitizenB has provided a useful link in post #83 to give you a flavour of the telephone mediation process, have a good read so you can get yourself ready for a fairly brisk pace of negotiation.

 

Okay, I can see you defended that you have not received a CCA or a breakdown of the claim amount. You also feel the claimed amount is excessive given the original balance at default? That is a brief summary and not detailed.

 

First- On the information you currently have before the mediation, set an acceptable settlement figure, over a suitable payment period and a suitable payment default remedy period. Keep that with you.

 

The mediator will ask you why you contest the claim. It would be appropriate to state ‘at the moment the claimant has simply claimed I owe them money and has provided no information or agreement to substantiate the claim or the claimed amount’ which is basically your defence. The mediator will probably not be legally experienced and this statement will simplify the matter from your point of view.

 

I would not expand on that at all, let the claimant respond to it. Particularly do not mention the importance of avoiding a CCJ. By the way you can avoid a CCJ if they do not produce the agreement, if they fail to win a claim, if they win and you pay in the requisite time scale or you agree a settlement in mediation, so do not concentrate on the avoidance of a CCJ at this point.

 

I am sure they will respond with ‘you had the money’ ‘we can prove you spent it’ ‘we are waiting for the agreement from the OC’ etc. I would force their hand very early in the mediation as to their breach of the regs in respect of the lack of the above and bringing a claim without the above i.e. no agreement as yet and an overstated balance without substantiation. This will give you an early indication of the strength of their case.

 

The more they argue their case and the more they try to convince you of the strength of their position, the more they will reveal about what they intend to do and what they already have. This will at least prime you for a WS if the matter proceeded past mediation.

 

Once you have both presented you positions through the mediator you will have a better understanding of the claimant, issues they may not have revealed previously and their appetite for negotiation.

 

You also need to consider your approach, you risk/ reward ratios of taking the matter to court as opposed to settling on the information you now have. I get the feeling you do not contest you owe them money but just the amount and you would like to test them to see if they can produce and agreement?

 

At this point you will need to review the information and decide how your stance has changed if at all, then how this changes your initial target for settlement i.e. what is the maximum you are prepared to go to and on what payment terms you will agree to and what agreement terms you will accept. For example you may decide your case is terminally flawed and agree the full amount, over 60 months at £61.35 with a 14 day payment default remedy. You may decide you have good grounds with elements of weakness and decide a 50% reduction over 36 months with a 28 day payment default remedy is more appropriate.

 

The negotiation is down to your personal risk/ reward ratio appetite and has to be right for you, keeping in mind the CCJ avoidance you state is important. You do not appear to be letting yourself get blinded by the fight which is good, so consider the virtues of closure, settlement and an affordable, workable solution on your terms with no negative impact on your credit rating.

 

A

[Alloyz1]

In any consumer agreement there a three main negotiation terms-

Value, repayment period and a default term.

 

The default term is a term you both refer to should you default on an agreed payment. It stipulates the time you have to rectify the default.

 

They will stipulate if you default they can immediately apply for judgement in respect for the original value claimed.

 

You should consider the default term to read something like 'if the defendant defaults on the agreed payment value or time, the claimant shall send the defendant a default notice and the defendant will have 14 days to rectify the default'

 

A

[Alloyz1]

Someone with more legal experience will be able to advise you on the default removal, however I understand it to be unlikely unless it can be proved to be an inaccurate marker.

 

WS is a Witness Statement, something you would be asked to submit by the courts should you not settle and the claim proceeds to trial. A WS is a more indepth and detailed account of your defence. If you use the mediation as above, you will obtain a lot of info for you to understand the claimants position and help you to put together a relevant WS.

 

A

[Alloyz1]

Good advice Andy and something I will bear in mind when discussing default terms

 

A

[Alloyz1]

Rita I am uncomfortable responding to PMs unless absolutely vital.

 

To be honest you could post it here because if the claimant is reading your thread, they already know all of your evidence, defence and position.

 

Please post here and everyone can continue to help.

 

If you want to discuss with a site team member first, please do.

 

A

[Alloyz1]

Hi Rita- In response to your PM and subsequent post.

 

I personally don't think the mediation took place too early, it sounds like you were not fully prepared for settlement.

 

It is always good practice to set yourself an acceptable offer/ settlement limit and whilst it may change as the mediation progresses, it provides some parameter to work to.

 

You went into the mediation and undertook some negotiation but did not set yourself an acceptable limit or even had the approach to get this settled. This appears to be why an offer made in the mediation was not acceptable then but now seems to be something you are considering.

 

Anyway that is history now. It will be up to the opposing party to decide if the offer is still available to you but I can not see a reason why it wouldn't be. A draft TO would be written, which you both agree with; and the court would seal it.

 

As far as I can see, you are back to deciding if you are happy to go to court to see if they have the agreement (with the associated risks/ reward) or trying to come to some sort of agreement outside of court. Nothing has really changed.

 

A

[Alloyz1]

As far as I can see, you are back to deciding if you are happy to go to court to see if they have the agreement (with the associated risks/ reward) or trying to come to some sort of agreement outside of court. Nothing has really changed.

 

A

 

If they eventually produce the agreement its £4000 and a CCJ

If they don't produce an agreement its £0 and no CCJ

If you settle, its £2000 easy payment terms no CCJ

 

You just need to make the decision now

 

A

[Alloyz1]

Personally, I would ask them to forward a draft Tomlin Order, based on their original proposal for settlement, for you to consider.

 

People on here can have a look and suggest adjustments and you can then send it back drafted as your proposal.

 

It is as simple as that.

 

A

[Alloyz1]

They have until the 3rd week in Nov to send you the information so they have a little time yet and it will be interesting to see if they pay the fee to proceed.

 

It may be worth waiting until the end of Nov and if you receive it you can ask for comments on here, and if you don't receive it maybe advise the court of their failure to provide said information, after all it is a 'court order' they have failed to comply with.

 

I think they are playing games with you re the mediation offer and unless the £2800 is acceptable, I would sit this out because you have the advantage of knowing they are prepared to settle at £2000. If they produce nothing more than previous you then have a choice, grind them back down to £2000 and get closure or let them advance to court with no proof.

 

A

[Alloyz1]

Great news well done