Mediation

From May 2024, the HMCTS Small Claims Mediation Service provides free, mandatory telephone mediation for most defended small claims (money claims under £10,000). The mediation session lasts up to one hour and is conducted by telephone. If an agreement is reached, it is recorded as a consent order. If no agreement is reached, the case proceeds to a hearing. In family proceedings, a Mediation Information and Assessment Meeting (MIAM) is required before most applications to the court. A court can penalise a party in costs who unreasonably refuses to attempt mediation in any type of civil claim. Commercially, civil mediation typically costs several hundred to several thousand pounds per party for a full-day session, depending on the mediator and value of the dispute. ACAS Early Conciliation is a free form of employment mediation that must be attempted before bringing a tribunal claim.

In practice, mediation works because the mediator can do something no judge can: talk to each side privately and test their case honestly without either side losing face. Nothing said in mediation can be used later — it is without prejudice — so you can explore a compromise without weakening your position if it fails. Go in knowing three numbers: what you want, what you would accept, and what walking away and litigating would realistically cost you in time, fees and risk.

Worked example: two neighbours are in dispute over a boundary fence and a drainage claim worth around £4,000. Court would cost both of them more than the sum at stake and would leave them living next door to each other afterwards. In a two-hour mediation the mediator moves between them, establishes that the real grievance is about access rather than money, and brokers an agreement: the fence is repositioned, one neighbour pays half the cost, and a right of access for maintenance is recorded in writing. Because it is put into a signed settlement agreement, it is contractually binding, and had proceedings been issued it could have been recorded as a consent order.

The misconceptions are worth clearing up. A mediator is not a judge and will not tell you who is right, so arriving expecting vindication leads to disappointment. Mediation is confidential but not automatically binding — nothing is enforceable until it is written down and signed. Refusing to try it can be costly: the courts can and do penalise a party in costs for an unreasonable refusal, even one who goes on to win. And free schemes exist for exactly the cases where paying for a mediator would be disproportionate, including the small claims service and, in family matters, the mediation voucher scheme.

Mediation is the main form of alternative dispute resolution, sits before the small claims track, and runs alongside ombudsman schemes, which decide rather than facilitate. Read our guide to alternative dispute resolution, and for separating couples see MIAMs and family mediation.