peterfall

Since the Court of Appeal’s decision in Churchill v Merthyr Tydfil County Borough Council the courts have moved from “strongly encouraging” mediation to actively integrating it into case management. Judges can now pause proceedings or order non‑court dispute resolution where that step is proportionate and doesn’t undermine the right to a hearing. In plain terms: as it stands in 2026, if mediation might fairly save time and cost, the court can require you to try it.

That shift was hard‑wired into the Civil Procedure Rules in October 2024. The overriding objective now explicitly includes promoting or using ADR; judges can order or encourage it at directions; and there can be adverse cost consequences against parties who ignore reasonable ADR proposals or disobey ADR orders.

We’ve already seen a remarkable shift in the judiciary’s appetite for mediation. In the Superdry v Manchester City branding dispute (DKH Retail Ltd & Ors v City Football Group Ltd), the Court ordered mediation close to trial, noting that mediations can “crack even the hardest nuts” and allow solutions the court simply can’t deliver. The case then settled—an outcome that speaks for itself.

Courts are also firmer on conduct. In Northamber v Genee World, the Court of Appeal made clear that silence in the face of a mediation invite is unreasonable—especially if you were told to explain your position. In Conway v Conway, successful defendants still lost a quarter of their normally recoverable costs after they unreasonably refused to mediate. The message is clear: if you don’t want to mediate, you better have an exceptionally good reason to not give it a try.

That said, refusal isn’t automatically punished. In Grijns v Grijns the court accepted that context matters—weak claims, unrealistic offers and overall conduct can make resistance to mediation reasonable. So, what’s reasonable? The familiar yardsticks: the nature of the dispute, merits, prior settlement efforts, proportionality of ADR costs, timing and realistic prospects of success. For mediation to work, there must be possibilities for a compromise.

From a practitioner’s perspective—especially for my area of inheritance and probate disputes—none of this is surprising. Parties need space, flexible options and a chance to be heard; mediation provides all three, often when legal positions have hardened but relationships still matter.

Post‑Churchill, mediation is embedded into the legal procedural framework: the Court’s now expect parties to explore ADR (and in particular mediation) early, revisit it as the case evolves, and explain themselves if they refuse. Judges are no longer asking “whether” you will mediate, but how and when. If the answer is “not yet,” it should come with clear, case‑specific reasons—because a refusal in a void will almost certainly cost you.

My view, shaped by days in the room with grieving families and tired litigators, is simple: there’s nothing to lose by building ADR into your dispute resolution plan from day one. Then – and hopefully sooner rather than later – you’ll begin to question what might be resolved now, or even what might partially resolve things so you can narrow issues and keep moving forwards towards resolution. More often than not, you’ll soon establish that the right time to mediate is now. Once that’s the case, engage the ‘other side,’ propose realistic windows of availability, suggest a shortlist of mediators. Then, exchange enough information, and work through any information black holes to make mediation the success that us mediators know it can be and usually is.

Gayle Roberts, January 2026

How long will peace continue now we’ve started to ease the lockdown and we are getting back to work. Ok some of us have worked at home through out the lockdown and some have been going to work in our factories and shops but many of our work operations have been suspended and are just starting to open up again. How many of us, as suppliers or purchasers, will be reaching to the top shelf and dusting off the contracts to see what their position is regarding extra costs, extension of time or just cancelling the order that isn’t needed any more.

The Government, alongside its furlough scheme and other financial support measures, has also been encouraging contracting parties to think before launching into a ‘not my fault v it’s your responsibility’ battle. In May the Cabinet Office issued ‘Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19’. It sets out 15 instances where they considered companies should show responsible and fair behaviour.  I doubt that anyone would disagree with any of the points until ………..

The problem is, once a company is staring down the barrel of a major financial hit that could result in the company closing down, they will start to fight hard and the governments hoped for even handed negotiation soon turns into a writ. One of the difficulties with a direct negotiation is it can be impossible for the personalities at the coal face of the contract to detach themselves enough to be open minded to a result which sees both parties carrying some of the burden for the problem. It is then when an independent dispute resolver could be brought in to sort out the differences and get the contract rolling again. A trained mediator can work with both parties at short notice and with little extra cost compared to the alternative of throwing writs about, engaging solicitors, barristers and then the court to reach a financial conclusion but not one that gets the contract done.

NDR can provide disputing parties with experienced dispute resolvers.