Mediation Before Court: Why You Probably Have to Try It Now

SiteKiln gives you plain-English information, not legal advice. If you're heading to court or mediation, consider speaking to a solicitor about your specific case.

‍‌‌‌‌​​‌​‌‌​​‌​‌‌​‌​‌​​​​​​‌‌‌‌​‍# Mediation Before Court, Why You Probably Have to Try It Now

You're not getting a free run at court anymore. Judges now expect you to at least try mediation -- and they can pause your case and tell you to get in a room (or a Zoom) and talk it out.

1. What mediation is -- in real life, not theory

Mediation is just:

• A structured meeting about the dispute
• With an independent mediator in the middle
• Where you try to agree a deal instead of fighting it out in front of a judge

Key points:

• It's confidential and "without prejudice" -- offers and chats in mediation can't be used against you later if it doesn't settle
• The mediator is neutral -- they don't take sides or make a decision, they help you reach your own
• It's usually either face to face (everyone in the building with separate rooms) or shuttle mediation -- mediator moves between you and the other side in separate rooms or Zoom calls
• If you agree a deal, it's written up as a settlement agreement -- once signed, it's a binding contract
• If you don't, you walk away and you can still go to court or adjudication

2. Churchill v Merthyr Tydfil -- what changed?

Before 2023, the big case was Halsey v Milton Keynes -- the Court of Appeal said you couldn't force unwilling parties to mediate because it would interfere with their right to go to court.

In Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416, the Court of Appeal changed course:

• It held that courts can lawfully stay proceedings and order parties to engage in non-court dispute resolution, like mediation, without breaching access to justice rights as long as it's proportionate
• The court can pause your case and tell you to try ADR: negotiation, mediation, local complaints schemes, early neutral evaluation

The practical upshot:

• Judges have clear backing to order or strongly push mediation at case management stages
• Refusing ADR without good reason can hurt you on costs -- courts already use costs sanctions for unreasonable refusal to mediate (Halsey was about that)
• This applies across the civil courts, including construction disputes and down into the small claims world, where HMCTS now has its own mediation scheme

3. Small Claims Mediation Service -- under £10k

Most trades disputes under £10,000 sit in the small claims track.

HMCTS runs the Small Claims Mediation Service (SCMS):

• It's a free, one-hour phone/online mediation for eligible money claims up to £10k
• A pilot from May 2024 makes mediation compulsory for many small money claims before they can go to a hearing
• A court-appointed mediator phones each side separately during the slot and shuttles offers between you

If you settle: the agreement is recorded and the claim is stayed or closed.

If you don't: the case goes back into the queue for a hearing -- the judge won't hold it against you that it didn't settle, just that you turned up and tried.

So for disputes under £10k, mediation is now effectively baked into the process.

4. Finding a mediator and what it costs (outside small claims)

For bigger or more complex construction disputes:

Where to look:

• Civil Mediation Council (CMC) -- has a panel and a fixed fee scheme for smaller claims
• CEDR (Centre for Effective Dispute Resolution) -- commercial mediations
• Local mediation practices and barristers' chambers with construction mediators

Typical costs:

CMC fixed-fee examples:

• Dispute up to £5,000 -- from £75 + VAT per party for 1 hour; £125 + VAT for 2 hours
• £5,000 to £15,000 -- £320 + VAT per party for a 3-hour session
• £15,000-£50,000 -- £445 + VAT per party for 4 hours

For larger commercial mediations via CEDR/others: expect £500-£2,000+ per party for a half or full day, depending on dispute size and the mediator's seniority.

Plus your own prep time and, if you use one, your solicitor's time.

Still, for many jobs, one day of mediation compares well with months of litigation or adjudication fees.

5. How a mediation day actually runs

In practice, a standard mediation looks like this:

Pre-mediation: you exchange short position statements and key documents beforehand. Mediator may have a quick call with each side to understand the basics.

Opening: sometimes a short joint session; often the mediator goes straight to private one-to-ones.

Private sessions (shuttle): mediator meets you in private, hears your side, asks what you want and what you could live with. They do the same with the other party and shuttle offers and ideas back and forth.

Negotiation: the mediator reality-checks both sides -- strengths, weaknesses, risks, costs of carrying on. You move from "opening position" to something closer to your bottom line.

Settlement (if you get there): terms are written up as a settlement agreement or a Tomlin order if court proceedings are underway. Once signed, it's binding; you don't then go to trial on the same issues.

If it doesn't settle: discussions stay confidential. You go back to court/adjudication with nothing you said in mediation being usable as evidence.

You can bring a solicitor or advisor; it's often worth it if the dispute is over more than a few grand, to keep the paperwork tight and avoid saying something careless.

6. What you need to prep as a tradesperson

Don't turn up with just a story. Turn up with:

• The contract -- sub-contract, emails, WhatsApps -- anything showing agreed scope, rates, variations
• Invoices and payment applications -- clearly showing how you got to the money you say you're owed
• Evidence of work -- photos, delivery notes, timesheets, site diaries
• Any complaint / defect lists from the other side and your responses
• A clear timeline -- dates of instruction, works, invoices, promises to pay, fall-out

And for yourself:

• Your opening position -- what you think is fair
• Your bottom line -- the worst deal you'd accept to avoid court
• A rough idea of future costs and stress if you don't settle (legal fees, time off tools, risk of losing)

You don't have to show your bottom line to anyone -- but if you don't know it, you'll either fold too early or hold out for something unrealistic.

7. What if mediation fails or the other side refuses?

If mediation fails: you can still go on to court, adjudication or arbitration, depending on your contract. The judge will usually just note that you tried -- that's in your favour.

If the other side refuses: courts already treat unreasonable refusal to mediate as something that can bite on costs -- Halsey and later decisions say a winning party can be penalised on costs if they unreasonably refused ADR.

After Churchill, there's even more emphasis on ADR -- judges are likely to be less sympathetic to "we just didn't fancy mediation".

If the court orders mediation/ADR and someone ignores that order, it can seriously hurt them when the judge decides who pays whose legal bills.

8. Mediation vs adjudication -- which tool when?

Both are useful, but they're for different jobs.

Adjudication:

• Statutory right on most B2B construction contracts
• Adjudicator makes a binding decision in around 28 days
• Great for payment disputes, especially "smash and grab" where notices are missing
• More legalistic, more expensive; outcome imposed, not agreed

Mediation:

• Voluntary (but now heavily encouraged / sometimes ordered)
• No decision -- you only settle if you both agree
• Can cover everything -- money, future work, return of materials, mutual walk-away, NDAs
• Cheaper, private, more flexible; better where you've both got some risk and might meet again

For a small subbie owed, say, £8k from a domestic client: Small Claims Mediation via HMCTS is a no-brainer before throwing more money at it.

For a £30k+ underpayment by a main contractor: you might consider adjudication first to get a quick binding payment decision, then mediation later if you want to sort wider issues or avoid a long-running war.

9. Enforceability and clauses

If you do settle at mediation: make sure you sign a clear written agreement -- amounts, dates, any snagging/remedial works, and what happens to the court/adjudication proceedings. Once signed, that's enforceable like any other contract; if they don't pay, you can sue on the settlement itself.

Mediation clauses in contracts: many modern construction contracts have clauses saying parties must try mediation/ADR before court. English courts increasingly treat these as meaningful obligations, not just boilerplate -- combined with Churchill, they'll expect you to take them seriously.

10. When mediation makes sense for you

Mediation is usually a good fit when:

• The dispute is £2k-£100k and legal costs could eat a big chunk of that
• Both sides have some risk -- no one has a slam-dunk case
• You work in the same area / same sector and might cross paths again
• You'd rather spend one day sorting it than months writing witness statements

It's less useful when:

• The other side is clearly insolvent -- a mediated promise from a broke company is still a promise from a broke company
• You need a precedent or a public judgment (rare for small trades disputes)
• There's a safety or principle issue where a fudge isn't acceptable

What to do next

• If you're in a dispute under £10k and heading to court: the Small Claims Mediation Service is free and now often compulsory -- prepare for it properly using the checklist in section 6
• If the dispute is bigger: look at the CMC fixed-fee scheme or CEDR for a mediator, and weigh up whether adjudication or mediation is the right first move (section 8)
• Read the adjudication guide if you think you need a binding decision rather than a negotiated settlement
• Check your contract for any mediation/ADR clause -- if it's there, you should follow it before court
• Download from the Doc Hub: the Final Account Statement template and the Not Been Paid escalation card

A construction solicitor would typically charge £250-400/hour for dispute resolution advice. This guide is free. If SiteKiln helped, buy us a brew.

Sources

• Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 -- courts can order parties to engage in ADR including mediation
• Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 -- unreasonable refusal to mediate can lead to costs sanctions
• Civil Procedure Rules, Part 26 and Practice Direction 26 -- case management and ADR referral powers
• Housing Grants, Construction and Regeneration Act 1996 -- legislation.gov.uk/ukpga/1996/53 -- adjudication as alternative to mediation for construction contracts
• HMCTS Small Claims Mediation Service -- gov.uk -- free mediation for small claims track cases, compulsory pilot from May 2024

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