Anatomy of a mediation

This case isn’t going to mediate… it’s a binary issue… it’s too high conflict… we’re too far apart… it involves a point of law… Perhaps that’s a view you sometimes take as a practitioner? In this column I am going to explore how you resolve even the most entrenched and difficult conflicts, with an Anatomy of a Mediation. (There are of course several other private processes of non-court dispute resolution, which I leave to one side for now, to be discussed in my next column).

First, which cases really can’t mediate? There are actually very tight criteria under changes brought in last year. When the FPR changed in April 2024 (post-Churchill v Merthyr Tydfil), giving judges the power to send cases out of court to mediate, and to issue costs orders against anyone flouting the new expectation, changes were also made to the MIAM (Mediation Information and Assessment Meeting). The MIAM is both the gateway to mediation and a necessary box to be ticked for a court application. To stop MIAMs being tick-box exercises, exemptions are now limited to cases involving domestic abuse, child safety concerns, or urgency.

What about the lingering sense that certain disputes are just not suitable for mediation? Let’s consider some examples, and where better to start than with the case of the moment. Standish v Standish, newly decided by the Supreme Court (on 2 July 2025), providing clarity on the sharing principle and non-matrimonial property. A case that rested on a point of law. Could it have been suitable for mediation? Yes. A lack of legal clarity on a specific point makes a case arguable, which brings with it a choice on how much time, money and energy to spend arguing about it. Before Churchill it was hard to force one side to mediate if they were determined to go to court. Now the levers are there. This was a case that started in 2020, when the landscape was different and any discussion now on whether it could or should have mediated is ignorant of the factors involved that drove a divorcing couple to spend five years fighting, losing their anonymity in the process, and to pay (possibly) several million pounds taking their battle to the highest court in the land. At its most laudable, the journey could be seen as an act of personal altruism in establishing legal clarity for others. Should a case like that mediate now? Imagine the potential costs order if there was no good reason not to.

What about a classic binary issue, like a relocation case? Suitable for mediation? Yes. Even in the shadow of a court case it can be the environment for productive, deeply practical, empathetic conversations to support understanding of what each other’s desired outcome would look like, and how it can be managed. Sometimes it can lead to agreement, but even if the agreement is that a judge will take the final decision, walking through the scenarios as a paper exercise can be an incredibly helpful process that can make the difference between good or bad relationships when the case is over.

Does high conflict rule out a case for mediation? Arguably those are the ones that need it the most. When someone is angry or frustrated, what they really need is to be heard and understood. You won’t get that in a positional process. Feeling pitted against a brick wall drives anger and frustration deeper, which can result in tit-for-tat tactics that make a conflict escalate.

And what about a case where the two sides are too far apart? The trademark dispute involving Asahi, Superdry and a logo on Manchester City football shirts provides a pithy example. At a pre-trial review in November 2024, lawyers for the claimants sought an order for compulsory mediation, asking for a “short, sharp mediation of one day before the end of December”, before “hundreds of thousands of pounds of further costs” was incurred. Counsel for the defendant submitted that “while there is no dispute about the power of the court to order mediation, it should only do so where there is a real prospect of success”, which, they asserted, was “not realistic” in that case. The judge ordered compulsory mediation, and on 13 January 2025 the parties notified the court that they had settled their dispute.

So, how does mediation support transformation in a situation that has hitherto seemed intractable? “Separate the people from the problem”, and “focus on interests not positions”. (Getting to Yes: Negotiating Agreement Without Giving In, Roger Fisher and William Try). But how do you achieve that? Mediation is a mindset and it is also a process. How the process is managed can be a game changer. Models of mediation differ. Family is more often run as a number of 1.5/2-hour sessions over a period of time. Civil and commercial mediations will be half or one day (or more), with lawyers involved and a combination of joint and shuttle mediation. Hybrid mediation is a family model that allows a tailored approach, combining elements of different processes, allowing the mediator to separate clients for individual, private, reflective conversations about position, options and interests, running the mediation over time, or in a day, with lawyers in the background or present. As a Family, Civil and Commercial, Workplace, and Hybrid qualified mediator, I use different elements of all areas of practise to provide a bespoke model for my clients. There is no one size fits all, but here is a run-through of the key features I have identified in successful mediations….

The pre-mediation (aka the MIAM)

Good preparation and pre-meetings with both sides separately are vital. You are offering a new environment for resolution, shifting mindsets from closed to open, establishing a safe arena for a constructive dialogue to take place. The first step is establishing trust between the mediator and each person separately, with a confidential one-hour conversation with each, to properly hear their perspective, what the situation is, how they got here, and what the priorities are. Understanding the interests behind the positions.

Pre-mediation is also an opportunity for the mediator to lay some groundwork for good communication principles in the mediation – how to speak to be heard (ie no finger-pointing), and how to listen with an open mind (listening doesn’t mean agreement).

Getting to the mediation itself can feel impossible in moments when a conflict has gone on so long there is no trust. That can require some shuttling between the sides pre-mediation, to narrow the issues where possible and smooth the path. I think of this as being like sweeping the ice in curling, reducing friction as much as possible.

Establish the facts before mediating. Be clear where misunderstanding looks like division – eg a claim that includes compensatory interest, and an offer that doesn’t, presents as a greater gap on paper than it actually is, if the respondent takes interest as implicit. Make sure financial disclosure is complete, including valuations before negotiations begin.

If position statements are being exchanged, provide guidance on tone. An aggressive position statement can unnecessarily set back a delicate process.

The mediation

The bit where everyone comes together and the mediator now steps into the middle to facilitate the conversation and negotiation.

The opening session is vital. It sets the tone and mindsets, and everything will flow from there. I have done mediations where preparation has paved the way for an opening session as a moment for emotional acknowledgment of what has gone before, leading to unexpected breakthrough surprisingly early in the day. Once empathy is in the room, agreement will almost always follow, because it enables the process to move forward to pragmatic negotiation.

In the course of reaching agreement, don’t leave questions unanswered. Lean into difficulty and discuss it. The privilege of a mediation is that it is a protected space to explore. Neither side wants to walk away with buyers’ remorse because an option wasn’t adequately considered.

The agreement

Be explicit as the mediator about how to recognise when it is time to settle. Is the deal on the table one the clients can live with? Invite reflection on how participants would feel going to bed tonight and waking up tomorrow knowing it is done, all things considered. But mediation won’t always settle on the day, and sometimes it is better to agree an extension of time.

The holy trinity of good dispute resolution is a process that combines knowledge of what can be fought for, an understanding of what is really needed, and the wisdom to evaluate best interest. Empowered like that, you can navigate anything.

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