How to Prepare for Court-Ordered Mediation in England

Court-ordered mediation in England is no longer an exceptional step: following amendments to the Civil Procedure Rules that took effect on 1 October 2024, active promotion of alternative dispute resolution is now embedded in the overriding objective itself, meaning courts can and do direct parties to mediate at any stage of proceedings. Preparing thoroughly – assembling the right documents, understanding the procedural timeline, and entering the session with a clear settlement mandate – significantly affects how efficiently the process unfolds. This guide sets out the practical steps that international businesses and their advisers should follow before they sit down at a mediation table in England.

Why Court-Ordered Mediation Has Changed in England

The Civil Procedure Rules amendments of 1 October 2024 placed the encouragement of alternative dispute resolution squarely within the overriding objective of dealing with cases justly and at proportionate cost. In practical terms, this means that a court may order, or strongly direct, parties to attempt mediation before a case proceeds to a substantive hearing – and a refusal to engage can attract costs sanctions.

Separately, the Small Claims Track Automatic Referral to Mediation Pilot (Practice Direction 51ZE) ran from 22 May 2024 to 21 May 2026 for claims under GBP 10,000. Under that pilot, eligible small claims were automatically referred to the Small Claims Mediation Service without a separate application. Whether that pilot has been extended or made permanent beyond its scheduled end date is subject to further court announcements and should be verified at the time of any filing.

For international businesses, the combined effect of these developments is that mediation is now a foreseeable step in most English civil litigation pathways, not an optional add-on. Planning for it from the pre-litigation stage can reduce cost and uncertainty considerably.

Step 1 – Lay the Groundwork Before Proceedings Begin

Effective preparation for court-ordered mediation begins well before a claim form is issued. The following pre-litigation steps create a cleaner record and a stronger negotiating posture.

• Send a compliant letter before action. A properly drafted letter before action, following the relevant pre-action protocol, documents your position, sets out the sums or remedies sought, and invites the other side to engage. Courts look at pre-action correspondence when deciding costs, so tone and substance matter.
• Explore a standstill agreement. If limitation periods are running, parties sometimes enter a standstill agreement that pauses time to allow genuine negotiations. This can prevent a claim being filed prematurely while preserving rights.
• Assess a payment plan as a potential outcome. Where the dispute involves a debt or quantified loss, deciding in advance whether a structured payment plan is acceptable (and on what terms) saves critical time during mediation itself.
• Check regulatory status. For disputes involving regulated counterparties, confirm whether FCA authorisation or any OFSI licence requirement affects the transaction or the remedies available. A settlement agreement with a sanctioned entity may itself require a licence.
• Verify corporate standing. If the other party is a company, obtain a current Companies House filing to confirm it is active, solvent, and correctly named. Errors in party names can derail enforcement of any settlement reached.

Step 2 – Understand the Procedural Pathway

Once proceedings are on foot, the court manages the timetable. Understanding where mediation fits within that timetable prevents parties being caught unprepared.

At the directions stage – typically after defence is filed – the court may include a direction to attempt ADR within a specified window, often before the next listing. In High Court proceedings, Case Management Conferences are the usual vehicle for such directions. In faster-track and multi-track cases, the timetable set out in the directions order governs when mediation must take place.

For small claims within the scope of PD 51ZE, automatic referral meant the mediation appointment was generated by the court's system rather than by party application; the parties received notification with a proposed date and were expected to confirm availability promptly. Missing that window without good reason could result in the claim proceeding without a mediation opportunity.

In all tracks, failure to comply with a court direction to attempt ADR – or an unreasonable refusal – risks an adverse costs order, even for a winning party.

If you are uncertain how a particular court direction interacts with your broader litigation strategy, our team advises on commercial negotiations and dispute processes in the United Kingdom and can help you map the procedural options.

Step 3 – Assemble Your Mediation Bundle

A well-organised mediation bundle lets the mediator and the other side understand your position quickly. Courts expect parties to engage constructively; arriving without key documents suggests the opposite. The bundle should typically include the following.

• Pleadings and key correspondence: the claim form, particulars of claim, defence, and any counterclaim, together with the most relevant pre-action letters.
• The core contractual documents: the agreement in dispute, any amendments, schedules, and the governing law and jurisdiction clause.
• Financial evidence: invoices, payment records, account statements, or valuations that support the quantum of your claim or defence.
• Expert or technical reports: if liability or quantum turns on a technical question, summarise the expert's conclusions in a short note for the mediator's position statement.
• Your position statement: a concise document (usually two to five pages) setting out the factual background, legal basis, key issues, and your preferred outcome. This is sent to the mediator in advance, not necessarily exchanged with the other side unless agreed.
• Authority to settle: written confirmation (internal or external) of the range within which the attending representative is authorised to conclude a settlement agreement on the day.

Step 4 – Prepare Your Team and Your Settlement Parameters

Who attends mediation, and with what authority, is as important as the documents. A representative who must telephone a superior for every decision slows the process and can signal lack of genuine commitment to settle.

For corporate parties, the attending individual should have actual (not merely apparent) authority to sign a settlement agreement that day. If internal sign-off procedures require board approval, obtain a written board resolution in advance setting out the settlement parameters. The mediator and the other side will ask whether the attending representative has full authority; a hesitant answer undermines credibility.

Instruct your lawyer to brief you on the Best Alternative to a Negotiated Agreement (BATNA) before the session. Knowing your realistic litigation cost, timeline to judgment, and enforcement risk if you succeed at trial gives you a rational framework for evaluating proposals during the mediation without making reactive decisions under pressure.

Where the dispute has a financial restructuring dimension – for instance, the counterparty is distressed or insolvency proceedings are contemplated – understanding the interaction between a potential settlement agreement and any formal insolvency procedure is essential. Our restructuring practice in the UK covers these scenarios; further detail is available on our bankruptcy and restructuring page for the United Kingdom.

Step 5 – Attend the Mediation Session Effectively

English mediation sessions are typically structured around an opening joint session, followed by private caucuses in which the mediator shuttles between the parties. Some mediators skip the opening joint session if parties prefer.

The following practical points reduce friction on the day.

• Arrive on time and bring hard copies of the core documents, even if everything has been shared electronically.
• Keep opening statements focused and non-inflammatory: the mediator is not deciding the case, and attacking the other side entrenches positions.
• Use private sessions to share information you would not want disclosed in open court – mediations are conducted on a without-prejudice basis, meaning what is said cannot generally be used in subsequent litigation.
• If settlement is reached, insist on recording the terms in a written settlement agreement signed before anyone leaves. A verbal agreement at mediation is difficult to enforce if one party later disputes the terms.
• If settlement is not reached on the day, agree on next steps: an exchange of further documents, a follow-up call, or a second session. Leaving without any agreed next step wastes the progress made.

Cost Drivers and Realistic Timelines

Mediation costs in England vary considerably depending on the value and complexity of the dispute, the mediator's seniority, and the venue. As a general observation, a one-day commercial mediation involves the mediator's fee (often split equally between the parties), preparation time for legal advisers, and venue hire. For small claims under the PD 51ZE pilot, the Small Claims Mediation Service was provided by the court at no additional charge to the parties.

In terms of timing, a court direction to mediate typically sets a window of four to twelve weeks depending on track and complexity. Parties should book the mediator promptly once that direction is received; popular mediators have limited availability, and a delayed booking that causes the window to be missed can attract judicial criticism.

For international parties, additional lead time is needed to arrange travel, obtain translation of documents where necessary, and align internal decision-making across time zones before the session date.

Common Errors by Foreign Clients

International businesses encountering English court-ordered mediation for the first time frequently make a small number of avoidable mistakes.

• Treating mediation as a formality. Some clients attend having made no genuine effort to analyse settlement parameters in advance, expecting the process to fail so they can proceed to trial. Courts are alert to this attitude; a pattern of bad faith in ADR can result in costs consequences regardless of who wins the substantive claim.
• Sending representatives without authority. Particularly common where the foreign parent retains settlement authority. The attending representative becomes unable to close any deal, the mediation stalls, and the costs of a second session (if permitted) increase.
• Underestimating without-prejudice protection. Conversely, some clients misunderstand the scope of without-prejudice protection and are reluctant to reveal any information in mediation. A properly advised party can share considerably more in a private mediation session than in open court without prejudicing its litigation position.
• Failing to check enforcement mechanisms in advance. If a settlement agreement is reached, consider immediately whether it will need to be enforced abroad. An agreement that is not structured as a consent order (or that lacks appropriate governing law and jurisdiction provisions) may be harder to enforce outside England.
• Ignoring the pre-action record. English courts review pre-action correspondence when assessing costs. A claimant who refused reasonable ADR overtures before issuing proceedings may find its costs recovery reduced even if it succeeds at trial or in a post-mediation settlement.

If you are navigating court-ordered mediation for the first time as an international business or would like a second opinion on your settlement parameters, we welcome initial enquiries at info@ferrazwhitmore.com. You can also reach the team through our contacts page.

A Decision Checklist Before the Mediation Session

Use this checklist as a final review in the week before the session.

• Has the mediation bundle been compiled and shared with the mediator by the agreed deadline?
• Has the attending representative been given written authority to settle within agreed parameters?
• Has the BATNA been discussed with legal advisers and documented internally?
• Have all necessary regulatory checks been completed (FCA status, OFSI sanctions screening where relevant)?
• If the other party is a company, has a current Companies House search been reviewed?
• Has the governing law and enforcement strategy for any settlement agreement been considered?
• Is a template settlement agreement drafted and ready for use if terms are agreed on the day?
• For small claims under the pilot: has the court's notification of referral been acknowledged and the appointment confirmed?

Further context on how England's small claims mediation pilot developed and its current status can be found in our briefing note at England's Small Claims Mediation Pilot – May 2026 Status Update.

Engaging a Law Firm in the United Kingdom

Preparing for court-ordered mediation involves procedural knowledge, document strategy, and negotiation judgement working together. A lawyer practising in the United Kingdom can advise on how the CPR framework applies to your specific claim, help structure your position statement, and attend the session as a representative or adviser depending on the agreed format.

Ferraz & Whitmore advises international clients on dispute resolution and commercial matters across multiple jurisdictions. We approach mediation preparation as a substantive part of the overall litigation strategy rather than a procedural box to tick.

To discuss how your dispute might be approached in the context of court-ordered mediation, please write to us at info@ferrazwhitmore.com or visit our contacts page to arrange a consultation with our UK team.

Disclaimer: This publication is provided for informational purposes only and does not constitute legal advice. The information herein should not be relied upon as a substitute for professional legal counsel tailored to your specific circumstances. Ferraz & Whitmore assumes no liability for actions taken or not taken based on the contents of this material. For advice regarding your particular situation, please contact info@ferrazwhitmore.com.