In England and Wales, a trained mediator will see to it that thousands of disputes are put to rest each year. These matters are settled not in a courtroom but at a table, or more often these days via video link. Mediation is now the go-to first option for civil dispute resolution; knowing when to make use of it and how it operates can be the difference between saving thousands of pounds and enduring months of aggravation.
The Civil Procedure Rules and Mediation
For those governed by the Civil Procedure Rules (CPR), mediation has been elevated from an afterthought to a cornerstone of the justice system. Pre-action protocols have made it incumbent on parties to look at alternative dispute resolution before making a claim. And since Halsey v Milton Keynes in 2004, the courts have not hesitated to issue costs orders against those who unreasonably decline to mediate.
The position was made clear by the Court of Appeal in Churchill v Merthyr Tydfil (2023), which held that ordering ADR is within the court’s power. With amendments to the CPR taking effect from 1 October 2024, this ruling is now fully in force. Judges have the case-management authority to require mediation as part of the overriding objective, and any refusal to do so will be reflected in the costs. The intent of the rules could not be plainer: you are expected to mediate first and only litigate if there is no other way.
Why the Justice System Favors Mediation
There are good reasons for the system to put its weight behind the process. The benefits are considerable:
- It is far less expensive. Legal and expert fees in a contested trial can run rings around the amount in question, whereas a mediation is a small fraction of the cost.
- It is quick. While litigation can drag on for a year or more to get to trial, most mediations are put in place in a matter of weeks and done in a day.
- There is privacy. Conducted on a without-prejudice basis, what is said in the room stays there. There is no public judgment or press to contend with.
- You have control. A judge does not impose an outcome; the parties do. This allows for creative settlements – be it an apology or a staged payment plan – that a court would never order.
- It preserves relationships. The collaborative nature of the process means commercial or family ties are mended rather than torn apart.
- It works. Most cases are resolved on the spot or very soon after.
Suitable Disputes
Mediation is a versatile tool. It is well suited to:
- Commercial and contract issues such as unpaid invoices or shareholder row
- Property matters including boundary lines, construction defects or landlord and tenant wrangles
- Employment grievances and discrimination claims before they reach tribunal
- Family and inheritance problems like probate or contested wills
- Claims of professional negligence against advisers
- Personal injury and clinical negligence where liability is in doubt
- Community and neighbourly disagreements over noise, parking or trees
If both sides stand to gain from an end to the disagreement, mediation will almost certainly be of service.
Is a Lawyer Necessary?
“Not at all, and that is one of the appeal of the process” said a UK Mediator, Harvinder Singh Bhurji who has provided mediation services for nearly 25 years. It is informal and many small commercial or workplace mediations are handled without legal representation.
However, in the right circumstances a solicitor is worth having. For a complex or high-value dispute, one can help gauge the merits of the case and make sure the settlement is enforceable. For something more modest, a sensible approach is to seek counsel before and after, but attend the session unrepresented. The mediator must remain neutral and cannot offer advice, so in matters where the stakes are high, independent legal opinion is advisable.
A Comparison of Mediation and Litigation
There are distinct differences between the two approaches:
Mediation is a process in which the parties make their own decisions, often within a matter of days or weeks. The cost is modest and fixed, and because it is shared, it remains predictable. What transpires is entirely confidential, and while the outcome is flexible and based on terms both can agree to, it is binding once put in writing. In many cases the relationship is preserved.
Litigation, by contrast, leaves the decision to a judge. It is a public affair with open hearings and judgments that can run for months or even years. The expense is substantial and hard to forecast. It is a win or lose proposition with limited remedies, and the relationship is all but destroyed in the process. A court’s ruling is of course binding, though subject to appeal.
But the real divide is philosophical. Litigation is concerned with the past and apportioning blame; mediation is forward looking and seeks an outcome each side can accept. And be aware that a mediated settlement, once signed, is as enforceable as a consent order from the court if proceedings are under way.
When is Mediation Not the Answer?
It is a powerful tool, yet not one size fits all. There are times when it is simply not appropriate:
Where you require a legal precedent, only a court can provide a ruling on a point of law for future cases. If urgent orders are needed, such as injunctions or freezing and search orders, judicial intervention is a must. Nor will mediation work if the other party is in bad faith, using the process to fish for information or waste time rather than show a true willingness to settle.
One should also be wary of a serious power imbalance or safety issues, as in disputes marked by domestic abuse or intimidation, where negotiation could be unsafe. Allegations of fraud or criminality call for formal public adjudication. And if your reputation requires a public vindication, a confidential agreement will not suffice.
That said, the courts will want to see that you have at least given mediation some thought and can account for why you have not pursued it.
Conclusion
Under the Civil Procedure Rules, there is now an active nudge for disputing parties to mediate. For most civil matters, the speed, privacy and control it affords are things litigation cannot offer. The more pertinent question is how soon to do it. Litigation has its place for points of principle or an opponent who is not acting in good faith, but for the rest, a day’s commitment with a competent mediator is usually enough.