In 2024, there were 1,730,709 civil claims issued, a number virtually unchanged from the amount issued 2023. Yet, there were only 48,413 trials in the same year. That’s approximately 2.8%, meaning around 97% of civil claims were resolved or determined without going to trial.
This striking statistic underscores the growing importance of alternative dispute resolution, particularly mediation.
For the minority of cases that do reach trial, it's increasingly common for judges to criticise parties who have not meaningfully attempted to reach an out of court settlement, especially where no mediation has taken place, or worse, where one party has refused an invitation to mediate.
Courts today have a healthy amount of scepticism towards excuses given for not trying to resolve disputes. Judges frequently comment on a skilled mediator’s ability to defuse hostility and disabuse both parties from the certain notion that they will win at trial. As the court once observed:
"The fact that a party believes that he has a watertight case again is no justification for refusing mediation. That is the frame of mind of so many litigants."
As long ago as 2013, Sir Alan Ward in the Court of Appeal colourfully noted:
“You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable.”
More recently, the Court of Appeal has confirmed that it is within the court’s powers to compel parties to mediate - a principle now embedded in the Civil Procedure Rules.
Whilst it’s always preferable for parties to enter mediation voluntarily, many legal professionals will be familiar with mediations where, at 4pm, it looks likely they will be on the 5.52pm out of Paddington yet by 7pm, the client is signing a settlement agreement.
Whether advising owner-managed businesses, family firms, or larger corporates, accountants are often the first to be consulted when a commercial dispute arises. Early engagement with legal advisors can help clients explore mediation before costs escalate and in many cases, before proceedings are even issued.
Encouraging clients to consider mediation at the outset can:
To be effective, it's essential that both parties fully understand the other sides position before going into a mediation, typically via correspondence between the parties’ lawyers and often supplemented by a mediation position statement. Crucially, the parties should engage a reputable mediator; one with a proven track record of success.
Statistics consistently show that 60%–70% of mediations settle on the day, with a further 20% resolving shortly afterwards. That doesn’t just happen because parties mediate, it happens where parties mediate with purpose and with an understanding of the mediation dynamics that can turn 4pm frustrations into a 7pm settlement.
If you have clients facing potential disputes - or even those already engaged in proceedings - our dispute resolution team would be happy to discuss how early, strategic mediation can form part of a cost-effective resolution.
