UK: Mediation: Success Or Failure?

Last Updated: 30 October 2017
Article by Warren King

Mediation is now a very familiar tool in the armoury for the resolution of disputes. The mediation process is largely well known by lawyers and there is a wealth of experience of how to work with it. It is widely recognised (particularly when applied to the right claim) that it can be instrumental in the resolution of claims.

In recent times however there has been anecdotal comment of a perception that more mediations than before are failing with the parties walking away without having reached a deal. Given the resources (both of time and cost) that are often involved on the mediation process this can be frustrating and here we seek to explore to what extent that perception is borne out by actual mediation outcomes.

Facts and figures

The CEDR Mediation Audit is a biennial audit and is compiled from the survey responses of UK based mediators dealing with civil and commercial claims. The result of the last audit was published in May 2016 and is available here.

Amongst other detail compiled it reports deals directly on the success rate of mediations based on the results of the survey. On that issue the report comments;

Although the overall success rate of mediations remains constant, with an aggregate settlement rate of about 86% there is a variation from previous years audits in how those settlements are achieved. The proportion of cases that achieve settlement on the day of mediation has fallen from 75% to 67% but this decrease has been offset by an increase in the proportion of cases that settle shortly after mediation, rising from 11% to 19%.

When linked to the evidence that mediations are taking longer, this change in the pattern of settlement rate may well suggest that cases are becoming harder, with parties needing longer time to reach agreement.

We have looked at the figures for the previous audits from 2007 and the breakdown is set out below.  This includes the 2016 figures for ease of comparison;

Based on this data the success rate of mediations (assuming that success is measured on the basis that a settlement was reached) has stayed largely constant over the last decade or so (between 86% and 90%) but the 2016 results do reflect a reduction in the disputes that settle on the day. So whilst collectively the rate of settlement is constant at circa 86%, in a third of disputes, there is no resolution actually at the mediation. As for the figures for post mediation settlement these are described as being reached "shortly thereafter" but no detail is provided of how long exactly is "shortly" – days/weeks?

We are mindful that the contributors to this audit are mediators and it is compiled by CEDR. In that sense the audit cannot be viewed as entirely independent. That said the results may indicate, if not an overall reduction in success rate, a change in the pattern of mediation outcomes.


We have obtained views within the team as to whether the experience of lawyers "on the ground" is indeed that fewer claims are now reaching a settlement at mediation. It is fair to say that there are lawyers who do share that view and equally some do not.

A clear picture is perhaps difficult to extrapolate as in any one year a lawyer will only run a small number of mediations – this has never been a high volume activity. The perception of outcomes may well be coloured by a recent experience of mediation rather than being representative of an actual trend.

Why do mediations fail?

Whatever the true picture mediation as a process is here to stay for the foreseeable future and so here we seek to summarise some of the reasons why mediations fail. Success can never be guaranteed (there will always be claimants that want more than the defendant is prepared to offer) but attention to these factors so far as is possible, especially in the preparation for the mediation, should increase the prospects for success.

1. Lack of engagement

A claim is more likely to settle where the parties are committed to and engaged with the process. The making of orders by the court that encourage ADR including mediation together with the potential for adverse costs consequences of refusing to mediate can mean that a recalcitrant party simply views mediation as a "tick box" exercise. This can be difficult to address and the expertise of the mediator to draw the party to the table will be crucial.

2. Strategic / tactical

There are always difficult opponents from time to time (parties and their lawyers) – mediation is no exception. Those that view the mediation process as an opportunity to play games or simply as a fishing expedition will make settlement an uphill struggle. It is essential to be well prepared for this type of opponent and have thought through in advance the strategies to be deployed. The appropriate approach by the mediator will again be essential.

3. Timing

The timing of the mediation in the life of the dispute is an important element in the process of securing a resolution. Too early and a party may feel they don't know enough to make decisions on settlement – too late and there will be the investment that has already been put into the claim to handle. This has to be considered on a case by case basis. It is not a one-time fits all exercise.

4. Choice of mediator

The mediator has to have the right mix of legal, technical and interpersonal skills for the dispute at hand. He/she will need to secure the trust and respect of the parties quickly and build rapport. To be impartial is essential (both real and perceived) and to have the ability to conduct the shuttle diplomacy and the skill to unlock impasse is key. Time spent in making the right choice is likely to pay dividends.

5. Preparation and approach

Thorough preparation of a parties' case for the mediation is crucial. This extends not only to the facts and legal principles at play but also to the tactical and strategic approach to settlement to be taken. A clear rationale why a particular position is being adopted or why an offer is made in those terms will increase the prospects that the opponent will engage with it.

Those who have the authority to make decisions on settlement should ideally attend for all parties. If that is not possible then they should be accessible or instructions provided as to workable settlement authorities.

A settlement is not reached – what then? To describe that as a "failure" of mediation is perhaps over simplistic. The mediation (as the data above records) may well pave the way to a future deal. In any event the likelihood is that more will be known about the opponent's position; there may be agreement on some points and a narrowing of the issues. The parameters of potential settlement are often then clearer. Frustrating – certainly yes; but a complete "failure" – probably not.

First published January 2017

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions