Mediation: The Quiet Revolution in Dispute Resolution

Litigation should always be seen as a last resort; it is often viewed as the “nuclear option” and it is very difficult to maintain an amicable relationship after proceedings have started. Litigation is also becoming increasingly costly and time-consuming, leading parties to consider other means of dispute resolution. Recognised by courts, practitioners, and clients alike for its efficiency and flexibility, mediation offers parties an opportunity to achieve mutually acceptable outcomes without the expense and uncertainty of trial. Mediation does not apply simply to civil cases either, it is also a useful tool for family law proceedings and is often used to help resolve disputes around contact with children. This article examines the principles underpinning mediation, its procedural framework within the legal system, and the practical advantages it affords to both legal professionals and those seeking to resolve disputes in a structured yet collaborative manner. It will conclude by looking at the possible future of mediation.

Courts are now endorsing alternative dispute resolution ('ADR') more than ever. Within civil proceedings, it is important to note that the Court now has the power to order parties to engage in ADR (whereas previously it was only recommended or suggested). This change has come about following the case of Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416. In Churchill, the Court of Appeal held that the Court can order parties to engage in a non-court based dispute resolution process, or order a stay for that parties to engage in a non-court based dispute resolution process, provided that the order (at [65] of the decision):

1. Does not impair the essence of the Claimant's right to proceed to a judicial hearing; and

2. It is proportionate to the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.

In a family law context (such as applications for injunctions and child arrangements orders), the position is slightly different. In 2024, the proposal for mandatory mediation for separating couples was abandoned (see here). Currently, parties are expected to attend a Mediation Information and Assessment Meeting ('MIAM'). before they can start court proceedings, unless there is an exemption which is applicable (these include: domestic abuse, child protection concerns, urgency such as a risk to life, liberty or physical safety). At a MIAM, the parties would meet with a family mediator to discuss alternatives to court for resolving disputes, such as mediation.

What is Mediation?

Mediation is a flexible and confidential process used to settle a dispute between two or more parties. Mediations usually involve appointing a mediator; someone who is an independent and  impartial third party. The role of the mediator is to help the parties talk through the issues, negotiate, and (hopefully) come to a mutually agreeable solution. They work confidentially, and so will not be able to make disclosures to the other party during a mediation unless permission is given to do so.

The logistics of a mediation are flexible. For example, a mediation can happen in person (and if it does, parties are usually given their own rooms and the mediator, in essence, shuttles between the two to convey messages) or it can take place virtually. The timing of mediation is also somewhat flexible: it can take place before or after issuing proceedings at court. Often, litigation is seen as a last resort and a 'nuclear' option in that it starting proceedings generates animosity; therefore mediations tend to (but not always) take place before the commencement of proceedings.

It is, however, a voluntary process (in that the parties have to agree to do it) and a mediation is conducted "without prejudice" and the contents of a mediation are confidential. That means that anything discussed at mediation cannot be relied on in court. There is a clear policy argument behind taking such a stance; it encourages parties to reach a settlement and allows the parties to be transparent without fear of points being weaponised later on down the line in court. There are, however exceptional circumstances to this. The case of Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC) at [44] it was held that a court may override the confidentiality provisions and permit confidential information arising out of, or relating to, a mediation to be disclosed in exceptional circumstances. This is when it is deemed to be in the interests of justice to do so.

If the parties are able to successfully mediate and reach a settlement, they will often need to sign a settlement agreement reflecting the arrangement they have come to. There is a common misconception that settlements reached in mediation are not enforceable. This is wrong. The settlement reached in mediation will be enforceable as a contract once it is in writing and signed. This acts as a safeguard to prevent abuse of the system. Independent legal advice should always be sought on this point as to the available enforcement options.

Advantages of Mediation?

There are a number of advantages to mediation as opposed to litigation, which are as follows:

• Firstly, it is a highly effective method of resolving disputes. Indeed, the Centre for Effective Dispute Resolution (CEDR) published in 2025 reported that 70% of their cases settled on the day, with another 17% settling shortly thereafter.

• Secondly, it puts the parties at the very centre of the dispute. The parties are actively involved, and any resolution is very much in their control.

  
  

• Mediation is often a faster and cheaper way to resolve a dispute as opposed to the court process. The latter can take any number of years to complete and can be expensive.

• Mediation can produce outcomes which might not be possible via determination by the court or arbitration. Indeed, one issue which parties must consider is the limited scope of legal remedies in the court arena or arbitration. They may be inappropriate to resolve the wide range of business or commercial issues at play in the current circumstances.

• Somewhat parasitic to the point above, a client's needs, interests, aims and objectives can be achieved through mediation. The process helps the client to identify their underlying interests and the implications that various alternative outcomes may have on those interests. This goes over and beyond a simple cost benefit analysis.

• Unlike litigation, in a civil context, business relationships are more likely to be preserved or enhanced by mediation. Long-term relationships, arrangements in small or sensitive markets, joint ventures and similar relationships can be restored. In the context of family proceedings, it has the potential to reduce animosity between separated parents and make co-parenting easier.

• Even if a mediation does not result in settlement or not seen to be successful, there is likely to be a benefit to the parties in any event. For example, the parties may have narrowed the issues in the dispute, or they may have tested the respective strengths and weaknesses of their case in the run up to trial. The latter could also inform their trial strategy and their approach to the dispute.

Refusals to Mediate

In a civil context, is also a risk that refusing to engage in mediation or ADR may result in cost consequences. This can happen even if the party who refused to mediate wins their case. In Halsey v Milton Keynes General Trust [2004] EWCA Civ 576, the Court of Appeal considered whether a refusal to mediate should give rise to costs sanctions. The Court noted that any decision to deprive a successful party of any of its costs (on the grounds that it refused to agree to mediate) is an exception to the usual rule that costs follow the event. Accordingly, the burden to justify a costs sanction lies with the losing party. The unsuccessful party must show that the successful party acted unreasonably in refusing to mediate. The Court of Appeal provided the following non-exhaustive list of  considerations when making such a determination (at [16] of the decision):

1. The nature of the dispute;

2. The merits of the case;

3. Other settlement options;

4. The cost of mediation;

5. Delay; and

6. Prospect of success

There are further cases of note on refusals to mediate:

• In PGF II SA v OMFS & Another [2014] 1 WLR 1386 (at [30] - [34]), the court held that silence could be equated with a n unreasonable refusal to mediate. Therefore, simply sitting back and not responding can impact a party later on.

• In Thakkar v Another v Patel & Another [2017] EWCA Civ 117, the Court of Appeal appears to suggest that frustrating discussions and/or "dragging their feet" (at [31]) could also constitute unreasonable refusal and draw an adverse costs order being made.

  .

• The case of Northamber Plc v Genee World Ltd [2024] EWCA Civ 428 makes a number of points. Firstly, it cements the point that silence in the face of an invitation to mediate should generally be regarded as unreasonable, even if there was a genuine reason to oppose mediation in the first place. Secondly, Northamber Plc makes it clear that once a party receives a clear offer to mediate, the onus is on it to respond. There is therefore no obligation on the party who made the offer to chase or follow up for a response.

The Future of Mediation and Analysis

• There is a clear expectation from the courts: parties should seek to resolve their disputes through ADR before starting the court process. This trend is most likely borne out of a number of factors. The first two are the current budget constraints and the pressures on the court system. This can lead to delay. Additionally, the benefits of ADR and mediation are becoming more widely recognised. It is unlikely that this stance will change any time soon. Indeed, on 28 January 2025, the Lady Chief Justice made the suggestions as to the future of mediation (in relation to the Singapore Mediation Convention, which focuses on the enforcement of international mediation settlement agreements) including: introducing a formal mediation council, the creation of a London Dispute Resolution Committee (to make recommendations on how best to provide a holistic approach to international mediation, arbitration and litigation) and updates to the Civil Procedure Rules might be required to aid enforcement of mediation settlements.

• There are now cases which demonstrate that, should a party reject a suggestion to mediate without any consideration of that option, costs sanctions are now likely to follow. For example: Reid v Buckinghamshire Healthcare NHS Trust [2015] EWHC B21 (Costs) and Bristow v The Princess Alexandra Hospital NHS Trust and others [2015] EWHC B22 (Costs)). In those cases, costs orders were made on the indemnity basis.

• If the option of mediation is suggested by the other side, it ought to be considered properly. If the use of mediation is to be rejected, it is likely that a thorough explanation of the reasons for rejection will need to be provided. However, this is not to say that the court will accept those reasons carte blanche; it will still be for the court to decide whether that refusal is unreasonable.

  
  

• How is the reasonableness of the refusal assessed? Whilst an opposing party may rely on hindsight showing that the decision to decline to mediate was wrong, the decision for the court is to assess the reasonableness to mediate at the time it was made. There is no exercise of hindsight. This seems to be very much in line with the decision of Corby Group Litigation v Corby District Council [2009] EWHC 2109 (TCC). Accordingly, risk attaches to any decision to reject the mediation option where it is suggested by the opponent. As the case law above demonstrates, the decisions are based on individual facts. However, it will always be difficult to predict in advance the court's likely view on the (un)reasonableness of a refusal to mediate.

• Northamber Plc (above) makes it quite clear that if a party breaches a case management order which is designed to encourage settlement through ADR, it should not be overlooked and allowed to fall by the wayside.

Please note that our posts should not be intended to be legal advice and should not be construed as such; they are merely discussions and therefore readers are encouraged to seek professional legal advice for their own matters.