TRW & Co · Disputes & Arbitration
Commercial Mediation Solicitors in London
Commercial mediation solicitors in London help businesses settle disputes through mediation, expert determination, adjudication and other ADR. Since Churchill v Merthyr Tydfil and the October 2024 rule changes, courts in England and Wales can order parties to engage in ADR and penalise unreasonable refusal in costs, so choosing the right process and timing is now a core part of dispute strategy.
Key pointAn unreasonable refusal to engage in ADR can now cost even a winning party part of its costs, so every proposal should be answered in writing with reasons and a counter-proposal. The party that chooses the timing and process usually negotiates on better terms than one ordered to mediate.
At a glance
Courts can order ADR
Churchill v Merthyr Tydfil [2023] EWCA Civ 1416 confirmed courts can order parties to engage in ADR and stay proceedings while they do.
CPR changed October 2024
From 1 October 2024 the overriding objective includes promoting ADR, and CPR 3.1(2)(o) gives an express power to order it.
Refusal carries costs risk
The court can consider an unreasonable failure to engage in ADR when deciding costs, even against the party that wins at trial.
Nothing binds until signed
Mediation is confidential and without prejudice, and a deal normally becomes binding only once a written settlement agreement is signed.
Plan cross-border enforcement
The UK signed the Singapore Convention in May 2023 but has not yet ratified, so international settlements need an agreed award or judgment route.
Swipe or scroll →
What commercial mediation solicitors in London do: the scope of mediation and ADR
Commercial mediation solicitors in London help businesses resolve disputes without a trial or a final arbitral award, or alongside them. Alternative dispute resolution (ADR) is the umbrella term for every process that sits outside a contested court judgment: negotiation, mediation, early neutral evaluation, expert determination, adjudication, arbitration and hybrids such as med-arb. Each has a different level of formality, cost, confidentiality and finality.
Mediation is the most widely used. A neutral mediator helps the parties negotiate, usually in a one-day session with private rooms and shuttle diplomacy, but has no power to impose a result. Nothing binds anyone until a written settlement is signed. That makes mediation low-risk to attempt and, when prepared properly, one of the most cost-effective tools in commercial disputes.
ADR becomes a legal question at three points: when a contract is drafted and its dispute clause chosen, when a dispute first crystallises and pre-action steps begin, and during litigation or arbitration when the court, the tribunal or the other side proposes a settlement process. Since late 2023 the courts of England and Wales can order parties to take part, so the decision is no longer purely voluntary.
The legal framework: Churchill, the CPR and costs
From Halsey to Churchill
For almost twenty years, Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 was read as preventing courts from compelling unwilling parties to mediate. The Court of Appeal changed that in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, decided on 29 November 2023. It held that the court can lawfully order parties to engage in a non-court dispute resolution process, and can stay proceedings for that purpose, provided the order does not impair the very essence of the right to a judicial hearing and is proportionate to the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.
The October 2024 rule changes
The Civil Procedure (Amendment No. 3) Rules 2024 came into force on 1 October 2024 and wrote Churchill into the Civil Procedure Rules. The overriding objective in CPR 1.1 now includes promoting or using ADR. Active case management under CPR 1.4 includes ordering or encouraging ADR. CPR 3.1(2)(o) gives the court an express power to order the parties to engage in ADR, and CPR 3.1(2)(p) refers to the court hearing an early neutral evaluation. Directions on the fast, intermediate and multi-tracks must consider ADR.
The costs rules changed too. In deciding costs, the court can take into account a failure to comply with an order to engage in ADR, or an unreasonable failure to engage in ADR. That includes the winner. Commercial mediation solicitors in London therefore advise on ADR as part of costs risk, not as an optional courtesy.
Costs consequences of refusing ADR
Even before Churchill, the Court of Appeal in PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 held that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable. The practical lesson has only sharpened: answer every ADR proposal in writing, give reasons if you think the timing or process is wrong, and propose an alternative.
Pre-action protocols, small claims and sector schemes
The Practice Direction on Pre-Action Conduct already requires parties to consider ADR before issuing. The Civil Justice Council has recommended making pre-action dispute resolution steps mandatory across the protocols, but those proposals still need rule changes. For lower-value money claims, HM Courts & Tribunals Service began automatically referring many defended small claims worth under £10,000 to a free one-hour mediation session from 22 May 2024.
Other regimes sit alongside the CPR. Construction contracts carry a statutory right to adjudication under the Housing Grants, Construction and Regeneration Act 1996, with a decision due within 28 days of referral unless extended. Employment claims normally require Acas early conciliation before a tribunal claim. London-seated arbitration runs under the Arbitration Act 1996, as amended by the Arbitration Act 2025 from 1 August 2025. Scotland and Northern Ireland have their own court rules, so the CPR changes described here apply in England and Wales.
Choosing the right ADR process
The right process depends on what is really in dispute. A disagreement about a technical valuation suits an expert. A breakdown in a long-term relationship suits mediation. A party that needs an enforceable, final decision abroad may need arbitration. Commercial mediation solicitors London clients rely on start by mapping the issues, the evidence and the enforcement position before picking a process.
| Process | Who decides | Binding? | Best suited to |
|---|---|---|---|
| Negotiation (without prejudice) | The parties | Only once a settlement is agreed | Clear liability with disputed amount; continuing relationships |
| Mediation | The parties, helped by a neutral mediator | Only once a written settlement is signed | Most commercial disputes, at almost any stage |
| Early neutral evaluation | A judge or neutral gives a non-binding view | No | Disputes driven by one legal or factual issue where parties have different views of the risk |
| Expert determination | An independent expert | Usually final and binding by contract, with narrow grounds of challenge | Price adjustments, completion accounts, valuations, technical questions |
| Statutory adjudication | An adjudicator | Temporarily binding until final determination | Construction payment, valuation and delay disputes |
| Arbitration | An arbitral tribunal | Final and binding; enforceable under the New York Convention | International contracts and disputes needing a confidential, enforceable award |
When to mediate
For commercial mediation solicitors in London, timing matters more than any other choice. Mediate too early and neither side knows enough to compromise. Mediate too late and costs already incurred become an obstacle to settlement in their own right. Many commercial disputes are best mediated after the letter of claim and response, or after key documents have been exchanged, when each side can see the real risks. A party that controls the timing and proposes a sensible window is usually better placed than one that is ordered to mediate on the court's timetable.
Escalation clauses and hybrid processes
Many contracts contain tiered clauses: negotiation between senior executives, then mediation, then litigation or arbitration. These help, but only if they set clear time limits and say exactly when the next step can start. Vague obligations to negotiate "in good faith" invite arguments about whether a claim was premature. Hybrids such as med-arb, where the mediator becomes the arbitrator if mediation fails, and arb-med-arb, where an arbitration pauses for mediation, can work but need careful drafting so that confidential information from the mediation does not taint the later decision.
Since Churchill, the question is rarely whether to engage in ADR. It is which process, at what point and on whose terms.
How a commercial mediation works, step by step
- Assess the dispute and the leverage. Review the contract, the correspondence and the evidence. Identify the strongest and weakest points, the realistic range of outcomes at trial and the likely irrecoverable costs.
- Propose or respond to ADR in writing. Make or answer the proposal promptly, with reasons. Silence is treated as unreasonable, and the correspondence may be shown to the judge when costs are decided.
- Choose the mediator and agree the terms. Agree a mediator with the right subject knowledge and style, the venue or online platform, the date, fees and a written mediation agreement covering confidentiality and authority to settle.
- Exchange position papers and a bundle. Each party sends a concise written case summary and an agreed bundle of core documents to the mediator, usually a week or two before the session.
- Prepare the negotiation plan. Settle the opening position, the walk-away point and the order of concessions, and decide who will speak in the opening joint session, if there is one.
- Attend the mediation day. Joint and private sessions follow. The mediator tests each side's case privately and carries offers between rooms. The person with authority to settle must be present or immediately available.
- Record the settlement. Draft and sign a binding settlement agreement before leaving, or heads of terms with a firm timetable. Where proceedings are on foot, a Tomlin order is commonly used to stay the claim on the agreed terms.
- Implement or move on. Monitor payment and performance. If the case does not settle, use what was learned to narrow the issues, make a well-judged Part 36 or Calderbank offer and continue with the litigation or arbitration.
Documents and preparation for mediation
Commercial mediation solicitors London clients instruct know that a mediation is only as good as the preparation behind it. Clients who arrive with a clear view of their risk, their costs and their commercial priorities settle on better terms than those who arrive hoping the mediator will produce a deal.
- Case summary. A short, persuasive position paper, written for a reader who knows nothing about the dispute, with the key contractual terms and evidence attached.
- Core bundle. The contract, the key correspondence, any expert reports and the pleadings or statements of case if proceedings have begun.
- Risk analysis. A privileged assessment of the prospects on each issue and the likely range of damages or liability.
- Costs schedule. Costs incurred to date and estimated to trial, and an estimate of what would and would not be recovered from the other side.
- Settlement authority. A board resolution or delegated authority for the representative attending, including any insurer consent required under the policy.
- Draft settlement agreement. A template agreement ready to complete on the day, including releases, confidentiality, payment terms, tax treatment and the mechanism for ending any proceedings.
Bring a draft settlement agreement to the mediation. Deals reached late in the evening are often lost overnight because nobody wrote them down properly. A signed agreement, or at least signed heads of terms with clear payment dates, protects the result while everyone is still in the room.
Confidentiality, privilege and enforcing a mediated settlement
Mediation in England and Wales depends on two layers of protection. The first is the without prejudice rule, which generally stops genuine settlement communications being used as evidence of an admission. The second is contractual: the mediation agreement usually makes the process confidential and provides that the mediator cannot be called as a witness. Both have limits. Without prejudice protection does not cover, for example, unambiguous impropriety, and confidentiality clauses may need to give way to disclosure obligations or regulatory duties.
A mediated settlement is a contract. If it is broken, the innocent party sues on the settlement agreement, often with a fast route to summary judgment. Where the agreement is embodied in a Tomlin order, the agreed terms in the schedule can be enforced by applying to the court within the stayed proceedings, without starting a new claim. In arbitration, settlement terms can be recorded as an agreed award, which carries the enforcement advantages of the New York Convention.
For cross-border settlements, the UK signed the Singapore Convention on Mediation on 3 May 2023. The government has said it will ratify once domestic implementing measures are in place, and the Ministry of Justice consulted on implementation in 2025. Until the Convention is in force for the relevant states, commercial mediation solicitors London parties use for international deals plan enforcement through a consent judgment, an agreed arbitral award or careful contractual security.
Risks and common mistakes in mediation and ADR
Treating mediation as a sign of weakness
Some boards still worry that proposing mediation signals a weak case. In practice the opposite is now true. After Churchill and the October 2024 rule changes, judges expect parties to engage, and an unreasonable refusal can cost a winning party some of its costs recovery. Proposing ADR early, on a timetable that suits your case, shows confidence and gives you control. The better question is when to mediate and with which mediator, not whether to do it. A short, reasoned letter proposing a process also creates a record that will help when costs are decided.
Sending someone without authority to settle
A mediation fails quickly if the person attending cannot agree terms. Mediators and opponents notice when a representative keeps phoning head office, and offers made late in the day lose force. Decide in advance who has authority, what their limits are, and how to reach the people who can extend those limits at short notice. Where an insurer is involved, its consent is often needed before any settlement is agreed, so involve the insurer early and make sure its representative attends or is available throughout the day.
Poorly drafted escalation clauses
Tiered dispute clauses are useful, but uncertain ones can delay urgent claims or give a defendant an argument that proceedings were started too early. A clause should say what each step involves, how it is triggered, how long it lasts and what happens if the other side does not engage. It should also preserve the right to seek urgent injunctions or protect a limitation position at any time. Review standard terms with these points in mind before a dispute arises, not after.
Forgetting limitation while talking
Negotiation and mediation do not stop limitation periods running. Under the Limitation Act 1980, most contract claims must be issued within six years of breach, and many contracts shorten the time for notices. If talks continue close to a deadline, agree a written standstill agreement that suspends time for a defined period, or issue protectively and seek a stay for ADR. Courts are generally willing to stay proceedings for mediation, so protecting the claim and pursuing settlement are not in conflict.
Losing the deal after the session ends
Settlements agreed in principle can fall apart if the terms are left to be drafted later. Tax treatment, confidentiality, releases of related parties, payment security and the effect on parallel proceedings all need to be dealt with. Most mediation agreements state that no settlement is binding until it is written and signed, so an oral deal is often unenforceable. Bring a draft agreement, settle the key terms on the day and sign before leaving where possible.
Cross-border mediation: Bangladesh, the Gulf, Singapore and the EU
International disputes raise two extra questions: whether the parties can be brought to the table at all, and how a settlement will be enforced where the assets are. Online mediation has made scheduling across time zones far easier, and mediators who work in Bengali, Arabic or Mandarin can be appointed where language matters.
Bangladesh. Bangladesh's Code of Civil Procedure 1908 has been amended to build mediation into civil suits, and the Arbitration Act 2001 and the Money Loan Court Act 2003 also make room for negotiated settlement. Civil litigation in Bangladesh can take considerably longer than in London, which increases the value of a well-timed mediation. Bangladesh is a party to the New York Convention, so where a mediated deal must be enforced there, recording it as an agreed award in a London-seated arbitration is often more robust than relying on the settlement contract alone. Our UK–Bangladesh disputes team handles these corridor issues.
The Gulf and Singapore. The UAE, Saudi Arabia and Qatar all have developing mediation frameworks and court-annexed schemes, and Singapore has positioned itself as a regional mediation centre. Contracts with counterparties in these jurisdictions often combine mediation with arbitration in London, Singapore or the DIFC. The governing law of the settlement agreement, and where it will be enforced, should be decided before the mediation day.
The EU. After Brexit, the EU cross-border mediation framework no longer applies to the UK. However, the Hague 2019 Judgments Convention entered into force for the United Kingdom on 1 July 2025, which can help when a settlement is turned into an English consent judgment in proceedings begun after that date and enforcement is needed in an EU state. Where enforcement in multiple countries is likely, our international arbitration and enforcement of judgments teams plan the route in advance.
How TRW & Co helps as commercial mediation solicitors in London
TRW & Co is authorised and regulated by the Solicitors Regulation Authority. We represent businesses, investors, shareholders and individuals in mediation and other ADR processes, and we run the litigation or arbitration that sits behind them. Where advocacy in the higher courts is required, we instruct specialist counsel.
Dispute clause drafting
We draft and review escalation, mediation, expert determination and arbitration clauses with clear time limits and carve-outs for urgent relief. Clauses are drafted with enforcement in mind, especially for Bangladesh, Gulf and Asian counterparties.
ADR strategy in litigation
We advise on when and how to propose ADR, respond to proposals and applications for ADR orders, and manage the costs record. ADR is integrated with our commercial litigation and contract disputes work rather than run separately.
Mediation representation
We select and brief the mediator, prepare position papers and bundles, plan the negotiation and represent you on the day. We draft the settlement agreement or Tomlin order so that the deal holds.
Expert determination and adjudication
We prepare submissions in expert determinations on completion accounts, earn-outs and valuations, and act in construction adjudications alongside our construction disputes team.
Shareholder and partner disputes
Breakdowns between co-owners are often best resolved through a structured buy-out negotiated in mediation. We combine ADR with the protections available in shareholder disputes, including unfair prejudice petitions where needed.
Cross-border settlements
We structure international settlements so that they can be enforced where the assets are, including through agreed awards, consent judgments, escrow and security, and coordinate with local counsel in Dhaka and elsewhere.
Commercial mediation solicitors London clients instruct should also understand the litigation risk behind the table. Our guide to mediation in commercial disputes explains the process in more detail, and you can browse all of our practices.
Checklist for decision-makers
- What outcome does the business actually need: payment, performance, an exit, a restructured relationship or a precedent?
- Does the contract contain an escalation, mediation, expert determination or arbitration clause, and have its steps and time limits been followed?
- When does limitation expire, and is a standstill agreement needed while talks continue?
- Have you answered every ADR proposal in writing, with reasons, and kept a record for costs purposes?
- Which process suits the real issues: mediation, early neutral evaluation, expert determination, adjudication or arbitration?
- Do you have a privileged risk assessment and a realistic estimate of irrecoverable costs to trial?
- Who will attend with authority to settle, and is insurer consent needed?
- Is a draft settlement agreement ready, covering releases, tax, confidentiality, payment security and the ending of any proceedings?
- If enforcement may be needed abroad, how will the settlement be made enforceable in that country?
Commercial mediation solicitors in London can usually tell you within a short initial review whether a dispute is ready to mediate and what preparation will make it work. To discuss a dispute, contact our London office.
Frequently asked questions
01Can a court in England force us to mediate?
Yes, in appropriate cases. In Churchill v Merthyr Tydfil the Court of Appeal held that courts can order parties to engage in a non-court dispute resolution process and stay proceedings for it, provided the order is proportionate and does not impair the right to a hearing. Since 1 October 2024, CPR 3.1(2)(o) contains an express power to order ADR. A court cannot force you to settle, only to take part in the process. Refusing to comply with an ADR order, or unreasonably refusing to engage, can be reflected in costs.
02What happens if we refuse an invitation to mediate?
The refusal itself does not end the case, but it can affect costs. The court can take into account an unreasonable failure to engage in ADR when deciding who pays what, and the Court of Appeal held in PGF II v OMFS that ignoring an invitation is generally unreasonable. If you think mediation is premature or unsuitable, say so in writing, explain why and propose an alternative process or a later date. That record will matter if costs are argued at the end of the case.
03Is what is said at mediation confidential?
Generally yes. Settlement discussions are protected by the without prejudice rule, and the mediation agreement usually makes the whole process confidential and prevents the mediator from being called as a witness. The protection has limits, for example where there is unambiguous impropriety, or where disclosure is required by law or a regulator. Documents that exist independently of the mediation do not become privileged just because they are shown to the mediator. Take advice before sharing sensitive material.
04When is the best time to mediate a commercial dispute?
Usually once each side understands the main evidence and risks, but before costs become a barrier to settlement. For many disputes that is after the letter of claim and response, or after key documents have been exchanged. Earlier mediation can work where the issues are simple or the relationship matters. Later mediation, after expert evidence, may suit technical disputes. Proposing a sensible window yourself is generally better than waiting to be ordered into mediation on the court's timetable.
05How is a mediated settlement enforced?
A signed settlement agreement is a binding contract, so if it is broken you can sue on it, often obtaining summary judgment. If proceedings are already running, a Tomlin order stays the claim on the agreed terms and allows enforcement within those proceedings. In arbitration, the settlement can be recorded as an agreed award. For cross-border deals, plan enforcement where the assets are: an agreed award enforceable under the New York Convention is often the most reliable route.
06What is the difference between mediation and expert determination?
In mediation a neutral helps the parties reach their own agreement and has no power to decide. In expert determination an independent expert, often an accountant or engineer, decides a defined issue such as a completion accounts adjustment or a valuation, and the contract usually makes the decision final and binding with very limited grounds of challenge. Expert determination suits technical questions where speed matters, while mediation suits disputes that need a negotiated commercial outcome.
07Does the Singapore Convention apply to UK mediations?
Not yet. The UK signed the Singapore Convention on Mediation on 3 May 2023, and the government has said it will ratify once the necessary domestic implementing measures are in place. The Ministry of Justice consulted on how to implement it in 2025. The Convention will take effect for the UK six months after ratification. Until then, parties to international settlements should use other enforcement routes, such as consent judgments or agreed arbitral awards.
Sources and official materials
- Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 — Court of Appeal: courts can order parties to engage in ADR
- Civil Procedure Rules Part 3 — Case management powers including ordering ADR and early neutral evaluation
- PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 — Silence in response to an ADR invitation is generally unreasonable
- Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 — Earlier leading case on ADR and costs
- Practice Direction: Pre-Action Conduct and Protocols — Duty to consider ADR before issuing proceedings
- Singapore Convention on Mediation: government response — UK approach to joining the Convention
- Arbitration Act 2025 — Reforms to London-seated arbitration from 1 August 2025
- Civil Mediation Council — Body for civil and commercial mediators in England and Wales
General information only, current as at 21 October 2026. It is not legal advice and does not create a solicitor–client relationship. It reflects the law of England and Wales unless stated otherwise; Scotland and Northern Ireland have separate legal systems, and the law changes frequently. Check current official sources and take advice on the facts of your matter.