Can the court force you to mediate? Mandatory mediation and ADR in civil disputes in England and Wales

For many years, mediation was viewed as something the courts could strongly encourage but not necessarily require. That position has changed significantly.

Following the Court of Appeal’s landmark decision in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, the courts of England and Wales can now order parties to participate in a non-court dispute resolution process, where it is appropriate and proportionate to do so.

The Civil Procedure Rules were subsequently amended to place alternative dispute resolution (ADR) much more firmly within the civil litigation process.

It means that parties involved in a dispute should no longer assume that mediation is simply an optional extra to consider if negotiations fail. Depending on the case, a court may actively encourage ADR, order the parties to participate in it or take a failure to engage into account, when deciding who should pay the legal costs of proceedings.

Importantly, however, being required to participate in mediation is not the same as being required to settle.

In this guide, we explain the current position on mandatory mediation and ADR, when courts can order parties to mediate, what can happen if you refuse, and how to approach ADR strategically if you are involved in a civil or commercial dispute.

Expert insight from Emma Anderson

“The important change is that ADR should no longer be treated as an afterthought to litigation. Whether acting for a claimant or defendant, parties should consider from the outset when mediation could best support their wider strategy. Even where positions appear entrenched, mediation can create commercial solutions that a court may simply not have the power to order.”

Emma Anderson, Partner at Gherson

What is alternative dispute resolution?

Alternative dispute resolution (ADR) is an umbrella term for methods of resolving disputes without relying solely on a court to determine the outcome.

Common forms of ADR include:

• Mediation, where an independent mediator helps the parties explore a negotiated settlement.
• Negotiation, where the parties or their legal representatives seek to resolve the dispute directly.
• Early neutral evaluation, where an independent third party provides an assessment of the strengths and weaknesses of the case.
• Adjudication, where an independent adjudicator determines a dispute, often within a specialist or contractual framework.
• Arbitration, where an independent arbitrator or tribunal determines the dispute and normally issues a binding award.

ADR can be used before court proceedings begin, while proceedings are underway or, in appropriate cases, shortly before trial.

You can learn more about Gherson’s alternative dispute resolution (ADR) services.

Can a court force you to mediate?

A court in England and Wales can now order parties to participate in mediation or another appropriate form of ADR.

The key development came in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416.

The Court of Appeal confirmed that courts have the legal power to stay proceedings or order parties to participate in a non-court-based dispute resolution process, provided doing so does not impair the parties’ right to a fair trial and is proportionate to the circumstances of the case.

The Civil Procedure Rules were subsequently amended from 1 October 2024.

ADR is now expressly incorporated into the overriding objective of the Civil Procedure Rules. Active case management also includes ordering or encouraging parties to use ADR, and the court’s general case management powers expressly include the ability to order parties to engage in alternative dispute resolution.

This represents an important shift in the role of ADR within civil litigation.

Mediation is no longer something parties can safely dismiss on the basis that they simply do not wish to participate.

Can a court force you to settle?

No.

There is an important distinction between being required to attend or participate in mediation and being required to reach an agreement.

A mediator does not normally decide which party is right or impose a settlement upon them.

Instead, mediation provides a confidential forum in which the parties can explore whether a negotiated resolution is possible.

If no acceptable agreement can be reached, the mediation can conclude without settlement, and the court proceedings can continue.

Mediation communications will generally be protected by the “without prejudice” rule if they arise in the course of genuine negotiations aimed at settling a dispute. Such protection is not automatic and depends on whether there is an existing or reasonably contemplated dispute and whether the communication was genuinely directed to settlement. The mere label “without prejudice” is not decisive. A document may fail to attract protection despite being labelled that way and, conversely, may still be protected even without the label, if in substance it forms part of genuine settlement negotiations.

This ability to retain control over the eventual outcome is one of the key differences between mediation and litigation.

Is mediation now mandatory in all civil cases?

No.

There is no blanket rule requiring every civil dispute in England and Wales to go through mediation before it can be determined by a court.

Instead, there are several different situations to distinguish.

Small money claims

Mediation has been integrated into the County Court process for many small money claims below £10,000, with parties required to attend an appointment with HMCTS’ Small Claims Mediation Service as part of the litigation process.

Higher-value civil disputes

For higher-value claims, judges have discretion to order ADR, where they consider it appropriate.

This means disputes involving substantially more than £10,000 can also be ordered to mediation.

Before proceedings begin

Parties are also generally expected to consider settlement and ADR before commencing litigation.

The Practice Direction on Pre-Action Conduct states that litigation should be a last resort and that parties should consider whether negotiation or another form of ADR could resolve the dispute without proceedings being issued.

ADR can therefore become relevant at several different stages of a dispute.

What happens if you refuse mediation?

Refusing mediation should be considered carefully.

Where a court has expressly ordered parties to participate in ADR, ignoring the order may amount to a failure to comply with a court order.

Even where mediation has not been specifically ordered, an unreasonable refusal to engage in ADR can potentially affect the court’s decision about legal costs.

The Civil Procedure Rules expressly allow the court to consider whether a party has:

• failed to comply with an order for ADR; or
• unreasonably failed to engage in ADR.

It means that even a party that ultimately succeeds at trial should not automatically assume its approach to mediation is irrelevant.

A decision not to participate should therefore form part of a considered litigation strategy rather than being a reflex response to an invitation from the opposing party.

What if I believe mediation will not work?

This is one of the most interesting aspects of the changing approach to ADR.

Parties sometimes reject mediation because:

• they believe they have an extremely strong case;
• negotiations have already failed;
• the parties are too far apart;
• they want a court judgment;
• the relationship has completely broken down; or
• they believe the other side will never compromise.

Those factors do not necessarily mean mediation has no value.

A significant example is DKH Retail Ltd & Others v City Football Group Ltd.

In that case, one party opposed compulsory mediation and argued, amongst other things, that the dispute required a judicial decision, and that mediation was unlikely to succeed.

The High Court nevertheless ordered the parties to mediate.

Mr Justice Miles noted that mediation can succeed even where parties initially appear to have intractable differences and that it can offer potential solutions beyond the binary outcome available from a court judgment.

The parties subsequently informed the court that the dispute had settled.

The case demonstrates why simply asserting that the parties are too far apart may not always be sufficient reason to dismiss ADR.

Why are the courts placing greater emphasis on mediation?

There are practical as well as legal reasons for it.

Litigation can involve substantial:

• legal costs;
• management time;
• disclosure and evidence requirements;
• reputational exposure;
• uncertainty; and
• delays before a final trial.

ADR may enable parties to resolve some or all of those issues sooner.

Government figures published in 2026 also illustrate the increasing use of mediation. Between August 2024 and August 2025, more than 81,000 small claims were referred to mediation and around 19,500 resulted in settlement.

Therefore, in a growing number of cases, ADR is being viewed as part of the civil justice system rather than simply an alternative operating outside it.

What types of disputes can be suitable for mediation?

Mediation can be considered across a wide range of civil and commercial disputes, including:

• contractual disputes;
• shareholder disputes;
• disputes between directors;
• partnership disputes;
• joint venture disputes;
• professional negligence claims;
• disputes involving private individuals;
• property and financial disputes;
• complex commercial disagreements; and
• cross-border disputes.

It can be particularly valuable where confidentiality is important, or where the parties have a continuing personal or commercial relationship that they would prefer to preserve.

However, suitability always depends on the circumstances.

For example, urgent court action may still be necessary, where a party needs an injunction, freezing order or other immediate protective relief.

Using litigation and ADR is therefore not necessarily an either-or decision. A dispute may involve urgent court proceedings followed by negotiation or mediation at a later stage.

Mediation vs arbitration vs litigation: what is the difference?

Although mediation, arbitration and litigation can all be used to resolve disputes, they operate very differently.