Mediation is now a routine component of the litigation game. In Churchill v Merthyr Tydfil County Borough Council[1] the court changed the traditional litigation rules, leading to a dramatic increase in lawyers encouraging mediation, the court mandating it[2] and hefty costs sanctions for those who refuse to play along.[3]
By Laura Tweedy, full-time mediator and conflict resolution specialist
Barristers have a key role in the litigation arena but in mediation they previously tended to sit on the bench. That is changing, with those who want to remain in the premier league seeking clarity on best practice. They recognise that preparation can decisively shape outcomes—not through exhaustive forensic analysis and advocacy, but by equipping clients to negotiate with clarity, focus, and confidence.
This article offers a practical framework for counsel’s mediation preparation.
- Believe in the Mediation Process
Mediation works. The 2025 CEDR Mediation Audit reports that 87% of cases settle, with 70% settling on the day and a further 17% shortly afterwards [4]. This is not merely reassuring for clients; it should also recalibrate counsel’s mindset.
Confidence in the likelihood of settlement:
- improves client engagement,
- encourages flexibility, and
- supports creative problem‑solving throughout the day.
Even reluctant parties settle. In DKH Retail v City Football Group Ltd[5] the court ordered the parties to mediate despite objections that the dispute required judicial determination; they notified the court of settlement just weeks later.[6]
The mediation process itself – not pre-existing goodwill – is part of what facilitates settlement. Despite this parties are frequently frustrated with the process and hearing messages they don’t like – that is just part of it, not a reason to give up.
- From Fear to Freedom
Many barristers approach mediation defensively. This is often driven by a quiet anxiety: fear of being challenged, undermined, or exposed in front of the client. That anxiety is misplaced.
Mediation is not a disguised courtroom. The mediator is not there to test counsel’s legal advice or assess the merits. Once this is properly understood, mediation becomes liberating rather than threatening.
The shift is from:
- performance, to problem‑solving,
- advocacy, to exercising judgment,
- legal perfection, to practical outcomes.
Without this shift, preparation risks becoming an exercise in drafting mediation submissions of little value. Embracing it allows counsel to do what they are best at: guiding clients through risk, uncertainty and decision‑making using clear language. It reflects why many of us were drawn to the profession in the first place – to genuinely help people.
- Be Clear About the Mediator’s Role
No one needs to persuade the mediator. In a facilitative mediation the mediator does not decide the dispute, express a view on the merits, or release information without permission. While well understood, its practical implications for counsel are often overlooked. Confidentiality with the mediator enables true candour – which is the catalyst for progress – even if the lack of poker face feels unfamiliar.
Counsel’s skills in rapid analysis and independent advice are most effective in mediation when used collaboratively with the mediator, focusing not on the legal points but on what is needed to release their client from the dispute.
Understanding the nature of the mediator’s role enables counsel to:
- have frank early discussions with the mediator,
- identify what genuinely matters to the client and signpost that to the mediator,
- help clarify where movement seems likely.
Settlement often stalls because parties or lawyers adopt a zero‑sum view of the dispute. Part of the mediator’s value lies in helping the parties identify other important factors beyond legal rights, frequently overlooked in litigation, such as:
- reputation,
- confidentiality,
- timing and structure of payment,
- future commercial relationships,
- business time,
- what is won by no longer being in the dispute,
- certainty,
- explanations or apologies.
These result in outcomes a court cannot order, but which often matter more than the pleaded case. Once identified, they can transform an apparently impossible negotiation into a workable resolution. Knowing these points in advance, or adapting to them as the mediation progresses, allows effective preparation between counsel and the client.
Mediators use a range of techniques to facilitate resolution, including, building rapport, careful listening so parties are heard, questioning and reflecting back to see it from a different angle and reality testing, directed towards helping parties assess what might happen in court against a potential offer.
Some lawyers are uncomfortable with the mediator taking the lead, not realising why the mediator is asking certain questions. But that concern is not only misplaced, it can actively undermine the process. In these circumstances useful preparation will involve developing a better understanding of what the mediator is trying to do and how to explain that to the others.
- Use the Mediator to Maximum Advantage—Before the Mediation Day
Points to consider when preparing to use the mediator to maximum effect:
- Ask whether the mediator offers pre‑mediation meetings. The more groundwork done in advance, the better.
- Request and collaborate on a clear timetable for getting to the mediation, including when documents will be exchanged and what those will be. Clarity breeds calm.
- Agree the format:
- Do not assume lengthy position statements are required. Confidential, resolution‑focused statements are often more effective. The best option might be what the Property Mediators use: confidential questionnaires.
- Do not assume that a traditional opening joint session will take place (and thereby the particular type of preparation required for that). Early joint openings often inflame rather than assist, whereas later focused joint sessions can be powerful once trust develops. Talk to the mediator about this.
- Ask what documents the mediator actually needs – large bundles take work and are rarely helpful
- Maximising the mediation
A mediation that does not settle is not wasted.
It may still provide:
- insight into the other side’s risk appetite,
- answers to key factual questions,
- a first meeting with future witnesses,
- a clearer sense of trial dynamics.
Time between negotiations can also be used productively: refining witness evidence, trial strategy, or the solicitor‑client relationship.
Understanding this allows counsel to prepare in advance, ensuring that time is used to best effect and that valuable information is obtained.
- Ensure Your Client Has Genuine Authority to Settle
Having the decision maker in the room is critical, yet often difficult to achieve. Counsel should try to get the decision maker there. Where only delegated authority is available, it is essential to establish its limits in advance, including whether further approval will be required, whether telephone or virtual attendance is possible, and whether there are any time constraints.
Remote participation by the principal can be a double‑edged sword. While it may allow swift instructions to be taken, it can also be disruptive if the decision‑maker has not lived the mediation process so struggles to appreciate how positions have evolved. This risk should be anticipated and managed carefully.
- Prepare Your Client Thoroughly
Thorough preparation is essential (and something to factor in fee quotes!) Counsel should help clients explore their chance of success at court, of course, but more importantly why they are in the dispute; what is really underlying this. Consider two preparatory meetings—one well in advance and one shortly before the mediation—to ensure genuine readiness.
It should ideally also cover:
- what matters beyond legal rights;
- a realistic assessment of the Best Alternative to a Negotiated Agreement, Worst Alternative to a Negotiated Agreement and Realistic Alternative to a Negotiated Agreement – this includes costs including the irrecoverable, the emotional impact of the dispute, the reality of giving evidence, the time to trial, judgment and appeals, enforcement risk, practical impact.
Clients should be warned about:
- the high level of emotion in every mediation,
- never knowing what is going on in the other room,
- the inevitable low point,
- long periods of waiting.
It is equally important to explain counsel’s role in mediation, this allows the barrister to assist the settlement without the client worrying that the barrister might just as conciliatory in court!
- Prepare Your Instructing Solicitor
Solicitors can do substantial groundwork including:
- circulating boilerplate settlement clauses early,
- preparing cost figures to date and to trial, and critically
- gathering any objective material such as market rents or comparables, so that negotiations are informed by evidence rather than assumption.
- Prepare Yourself for the Mediation Day
Practicalities matter:
- food,
- chargers,
- comfortable clothing,
- clarity on time constraints,
- a way to destress.
Counsel should anticipate their own emotional responses. It is common for clients to be ready to settle when lawyers hesitate. New information may emerge that cuts across earlier advice. These moments are part of the process, not a failure of preparation.
- Understand Your Role on the Day
This can be the most counterintuitive shift for many barristers. In mediation court advocacy, arguing the law and being the client’s spokesperson is unhelpful. Although good drafting remains beneficial!
Counsel can also be brilliant at:
- generating creative settlement options
- considering risk, value, and potential outcomes
- helping assist with client’s emotional responses
- shifting dialogue to move negotiations forward
- letting the mediator speak directly with the client, then doing work with the client when the mediator leaves the room.
- Be Open to a “Part Two”
Not all mediations need to run into the night, and many mediations now pause and reconvene, as expectations around work-life balance evolve. Where there is progress but not completion, a follow‑up session can produce better outcomes. Decision‑making improves with rest and mediation can proceed in phases.
- The who, what, where and when
Although addressed last, these are in practice the first questions to consider when deciding whether to mediate:
- Who – mediators vary widely in style, from light‑touch facilitation to more interventionist approaches. Subject‑matter expertise may or may not matter. Finding someone good, who suits the dispute, does.
- What – be clear about the objective. Settlement of the pleaded dispute may not be the only — or primary — goal.
- Where – venue affects dynamics. Online or in person? Neutral ground or addressing perceived home advantage?
- When – timing is under increasing judicial scrutiny:
- Early or repeated refusal can attract costs sanctions (Smith & Ors v Campbell & Ors[7]).
- Delay may be reasonable where disclosure is incomplete (Belson v Belson[8] (despite 15 attempts to induce mediation); Re Grenfell Tower Litigation[9]).
- But delaying past the court’s order for the date can be unreasonable (Appiah v Leeds City Council[10]).
Conclusion
Statistically, mediation is likely to work, and its increased use will reduce trial work. Counsel can nevertheless continue to win in the litigation game by adapting to this new phase of play, drawing on existing skills with a recalibrated mindset and thorough preparation.
Laura Tweedy, full-time mediator and conflict resolution specialist
[1] [2023] EWCA Civ 1416
[2] Ivey v Lythgoe and others [2025] EWHC 2325 (Ch); Brooke Homes v Portfolio Property Partners [2025] EWHC 1305 (Ch); Sky v Riverstone et al [2025] EWHC 1720 (Comm).
[3] Costs sanctions imposed for failure to mediate in: Northamber Plc v Genee World Ltd [2024] EWCA Civ 428; Conway v Conway [2024] EW Misc 19 (CC); Payone Gbmh v Logo [2024] EWHC 981 (KB) and Cabo Concepts Ltd v MGA Entertainment (UK) Ltd [2025] 7 WLUK 21; Ellis v Ellis [2025] EWHC 2609 (Ch); Grijns v Grijns, [2025] EWHC 2853 (Ch)); Fernandez v Fernande [2025] EWHC 2530 (Ch). Not in Gable Insurance v Dewsall [2025] EWHC 3399 (Ch); Alrubie v Chelsea FC and Granovskaya [2025] EWHC 541 (Comm)
[4] https://learn.cedr.com/hubfs/CEDR%20Mediation%20Audit%202025.pdf?hsLang=en
[5] [2024] EWHC 3231 (Ch)
[6] This reflects my personal experience of parties openly expressing to me that they are “paying lip service” to the process, ending the day with a settlement.
[7] [2026] EWHC 144
[8] [2025] EWHC 2989 (Ch)
[9] [2025] EWHC 3276 (KB)
[10] [2025] EWHC 1537 (KB)