Written by Amani Mahmoud, Foreign Qualified Associate Solicitor · SRA-regulated · Last reviewed 15 October 2026
When Is Mediation Compulsory in England and Wales?
Short answer: While there is no general law making mediation compulsory in every civil claim, in practice it is close to mandatory. Since October 2024, the courts can order parties to mediate, and refusing to engage without good reason can lead to costs penalties even for the party that wins. Defended small claims are automatically referred to a free court mediation service.
Many people ask whether mediation is compulsory before court proceedings. In England and Wales, the answer increasingly depends on the type of claim and the court involved. Largely, for the last twenty years, the rule was that courts could encourage mediation but not force it. That changed with a Court of Appeal decision in 2023 along with new court rules in 2024. If you are involved in a commercial dispute, you should expect to be asked to mediate, and you need a good reason if you decline.
For a general introduction to how mediation works, see our guide Do I Have to Go to Court? Mediation & Dispute Resolution Explained.
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Can a Court Force You to Mediate?
Yes, a court has the power to order you to mediate. In the matter of Churchill v Merthyr Tydfil County Borough Council [2023], the Court of Appeal decided that courts can lawfully pause proceedings and order the parties to take part in mediation or another form of dispute resolution. Comments by Sr Geoffery Vos, Master of the Rolls confirmed that any order made by a court to mediate must be must be proportionate to settle the dispute, fairly, quickly and at a reasonable cost and should not diminish the right to proceed to a hearing.
Following from this, the Civil Procedure Rules were also changed from 1 October 2024 so that:
- promoting alternative dispute resolution (ADR) is part of the court’s overriding objective;
- the court can order or encourage the parties to use ADR, including mediation;
- when deciding costs, the court must consider whether a party failed to comply with an ADR order or unreasonably failed to engage in ADR.
The court will not look favorably upon any party that breaches a court order and/or fails to engage in mediation. Even for a party that wins, if the other side are able to demonstrate that you refused to engage in mediation, there may be cost consequences.
Is Mediation Compulsory for Small Claims?
For many claims, yes. Since 22 May 2024, defended money claims worth up to £10,000 that would go to the small claims track have been automatically referred to the HM Courts & Tribunals Service Small Claims Mediation Service. It provides a free, one-hour mediation by telephone or video, usually within a few weeks.
If you do not attend without a good reason, the judge can take that into account at the hearing. Sanctions can include paying the other side’s costs or, in serious cases, having your claim or defence struck out. Personal injury and road traffic claims are excluded.
What Happens if You Refuse to Mediate?
You are allowed to say no, but you must be prepared to justify it. If the court decides your refusal was unreasonable, it can:
- reduce or refuse the costs you would otherwise recover, even if you win;
- order you to pay some of the other side’s costs;
- order interest to be paid at a higher rate.
Ignoring an invitation to mediate is usually treated as a refusal. Reasons the court may accept include that mediation had no realistic prospect of success, that its cost would be disproportionate, that the matter is urgent, or that it needs a legal ruling, for example on the meaning of a clause. Simply believing your case is strong is rarely enough.
Do I Have to Try Mediation Before Issuing a Claim?
Before issuing most civil litigation claims, parties are expected to follow the relevant pre-action protocol or the Practice Direction on Pre-Action Conduct. Both require the parties to consider whether some form of ADR could resolve the dispute. Failing to do so can be taken into account when costs are decided.
What About Tribunals and Family Cases?
- Employment tribunals: before most claims you must contact Acas for early conciliation. You do not have to settle, but you need the early conciliation certificate to bring a claim.
- Property disputes in the First-tier Tribunal: the tribunal also offers free mediation services. It is voluntary but often worthwhile.
- Family cases: in most private family applications, including disputes about children or finances, you must attend a Mediation Information and Assessment Meeting (MIAM) before applying to court, unless an exemption applies.
Does Mediation Mean I Have to Settle?
No. You must engage in good faith, but you are never forced to agree to anything. The mediator does not decide who is right. Discussions are confidential and “without prejudice”, so what you say cannot be used against you in court if the case does not settle. If you do reach an agreement, it becomes binding once an agreement is executed.
Why Mediation Often Makes Sense
- Risk: You have some control over the outcome; whereas if you proceed to trial your matter is entirely in their hands.
- Cost: Linked to risk, is cost. If a judgement is entered against you, once the enforcement date passes you are liable to pay. In this scenario, not only do you have to pay your legal fees but the other side’s legal fees, as well as additional sums in the judgment.
- It is confidential: Anything spoken about during a mediation cannot be used outside the mediation. This continues to apply if your matter did not settle at mediation and continues to trial. This is also referred to as ‘without prejudice privilege.’ As long as this is not waived, anything discussed at the mediation is strictly protected.
- It is quick: a mediation can often be arranged within weeks, while trials can take a year or more.
- Flexibility: Even if a matter does not settle at mediation, depending on the approach of the other side, there could still be scope to settle your matter in the following days/weeks.
- It allows solutions a court cannot order, such as an apology, a payment plan or a continuing business relationship.
How to Prepare for Mediation
If you find yourself in a position where you have an upcoming mediation or are wanting to engage in mediation and are feeling out of your depth, contact our team. Each case is different and so it is best to obtain legal advice about your matter so you can understand the strengths and risks of your case.
Frequently Asked Questions / Questions & Answers
Can I be forced to mediate if the other side refuses? If one side refuses, you can ask the court to order mediation. Upon the conclusion of the matter you can bring their refusal to the attention of the judge and this may result in costs being ordered against them.
Who pays for mediation? The court’s small claims mediation service is free. In larger claims, the parties usually share the mediator’s fee, venue fee (if it is not virtual) and each pays its own legal costs.
Is a mediation agreement legally binding? Yes, once an agreement is drafted and executed.
Does going to mediation look weak? No. The courts expect it, and agreeing to mediate is now the normal course for well-advised parties.
Do I have to speak? It depends. You may opt for an opening session. This is informal where the mediator, the parties and their representatives have a short meeting at the outset. Some mediators give the parties an opportunity to say a few words during this session. However, it is not mandatory. Further, it is also not obligatory to have an opening session if one or both parties do not want it.
Do I have to sit in the same room as the other side? No. Since COVID, there has been an understandable increase in virtual mediations taking place via Zoom or Teams. If your mediation is taking place in person, you can opt out of an opening session. Further, most of the time the parties and their legal representatives are in separate rooms and the mediator goes between them.
Get Advice Before Your Mediation
Our dispute resolution and mediation team prepares clients for mediation and represents them on the day. Call +44 (0)20 3588 3500 to arrange a consultation.
