“It’s a matter of principle.”
“The other side are lying.”
“I’m not willing to compromise.”
“Are we showing weakness if we agree to mediate?”
These are phrases I hear time and again from clients in litigation.
From solicitors, the language is different—but the message is often the same:
“Both parties are entrenched.”
“The other side’s solicitor is aggressive and unreasonable.”
“This dispute needs to be resolved by a Judge.”
By the time positions have hardened to this extent, it can feel as though court is inevitable.
But in reality, truly unresolvable disputes—the ones that genuinely require judicial determination—are rare.
The Shift Towards Mediation
Following Churchill v Merthyr Tydfil County Borough Council, the courts of England and Wales have made it clear: parties can now be required to engage in Alternative Dispute Resolution (ADR), including mediation.
In other words, mediation is no longer just an option—it may be an expectation.
Why Mediation Works (Even When It Feels Impossible)
One of the most common misconceptions is that mediation only works when parties are already willing to compromise.
In fact, the opposite is often true.
A skilled mediator is trained to help parties:
- Navigate entrenched positions
- Unpick complex or emotionally charged disputes
- Reframe issues to uncover common ground
- Rebuild communication where it has broken down
Even in highly contentious cases, mediation can open doors that litigation often closes.
Not Weakness — But Control
There is a persistent concern that agreeing to mediate signals weakness.
It does not.
Mediation is conducted on a without prejudice basis. This means:
- Discussions remain confidential
- Offers cannot be shown to the court (except in limited circumstances relating to costs)
- Parties retain full control over whether to settle—and on what terms
Rather than relinquishing power, mediation allows parties to retain it—avoiding the uncertainty, cost, and delay of trial.
A Different Way Forward
In many cases, mediation doesn’t just resolve disputes—it transforms them.
Relationships can be preserved.
Commercial realities can be prioritised.
Creative solutions—unavailable through the courts—can be achieved.
About the Author
Claire Kitchen is a solicitor and accredited mediator with over 25 years’ experience advising clients and resolving disputes.
If you are considering mediation—whether early in a dispute or after proceedings have begun—Claire offers a fixed-fee mediation service and would be happy to discuss how she can assist.