Because mediation is…

Fast and Low Cost
Mediations can sometimes be set up in a matter of days, and are typically orders of magnitude cheaper than a court case.

Effective
Most mediations (approximately 90%) result in settlement of the dispute. In their 2023 audit, CEDR found that the total settlement rate was 92%, with 72% settling on the day, and 20% settling shortly afterwards.

Flexible
A mediated agreement is not bound by the reliefs available to be awarded by a court. The parties can design a flexible settlement that matches their needs. It is voluntary and any party can withdraw at any time during the process.

Confidential
The fundamental principle of mediation, and also its primary advantage, is that it is a confidential process. Confidential that it is taking place, confidential in what is said and done in the mediation and confidential in its outcome. Until the parties agree otherwise, no information is shared between the parties. Importantly, nothing from the mediation can be used as evidence in any subsequent court proceedings.

This gives the parties the confidence that whatever is said and done, and whatever unsuccessful offers are made to settle, none of it can be shared outside the mediation group unless agreed. It is a safe space to try to reach agreement. Of course, when a deal is done, others may need to be informed so that the necessary payments and/or actions can be taken, but the overriding principle is that it is a confidential process; so if the mediation does not settle, whatever is said and done in the mediation cannot be repeated in court.

Voluntary
In order for mediation to work it is important that all parties agree to take part. It works best when all parties are open and flexible in their approach to the mediation. Entrenched positions and “trial” arguments need to be left at the door.

Although the process is directed and facilitated by the mediator, it is the parties who control the outcome and any agreement. In civil and commercial mediation, any agreement which is reached is legally binding and is ratified with signing of an agreement document after the mediation. But the parties may withdraw at any time before then.

to be Considered before trial
The parties’ attitudes to mediation or other non-court dispute resolution (NCDR) processes, are now explicitly taken into account when considering cost awards in UK civil court procedure. The Civil Procedure Rules were amended with effect from 1 October 2024, not only to consider NCDR in relation to costs, but also to allow the court to order mediation and also when giving directions, to consider whether to encourage or order mediation. This follows the decision in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 which was handed down at the end of 2023.