14 March 2023

When disputes arise, perhaps over unpaid debts or defective goods, or in relation to a challenge to a Will or a boardroom bust-up, the parties often begin the process of trying to sort things out by talking or by emailing each other. They may then exchange robust solicitors’ letters. After that, if matters are still not sorted out, one party may begin a Court claim, and the proceedings will then make their way through the various stages towards a trial.

Most cases do not get as far as a trial, and one of the reasons for that is that at any stage, the parties can engage in mediation.

Mediation is a form of negotiation where the parties are helped to come to a compromise by a trained mediator. On the day of the mediation, everyone meets up, either in the same building or by video. The parties generally discuss the case through the mediator rather than face to face. The mediator will twist arms and try to persuade the parties to come to a resolution. Often, that resolution is a compromise which can be painful for both sides.

This month, a Court of Appeal Judge who is chair of the judicial ADR liaison committee, Lady Justice Asplin, has called on judges and lawyers to do more to embrace mediation.

She noted that in the year to 30 September 2022, only around 7% of civil cases were settled through mediation. The other 93% were resolved in some other way or went to trial.

The Court rules and some Judges have tried to tell the parties that mediation is mandatory or compulsory. Lady Asplin could see that describing mediation in that way could put people off rather than encouraging them to go through it.

Mediation can be a great way to resolve intractable disputes. Around 85% of cases which go through mediation settle at the mediation or very soon afterwards, so it has a good track record.

Though not all cases are suitable for mediation, it is often a good thing to try.

Indeed, if one party suggests mediation and the other refuses, the Court can impose sanctions on the refusing party, such as disallowing their legal costs even if they go on to win at the end of the case.

A mediation is a bit like having painful dental treatment: it can be a miserable and bruising experience, but often it is better than the alternative. As a result, it is likely to continue to grow in popularity as the Courts and lawyers get more used to it.