9 Steps to Breaking the Silence in Negotiation

Based on CEDR’s #askanegotiator podcast series, Philip Williams, former Hostage and Crisis Negotiator, explores how, when faced with silence in a negotiation, using psychological and communication techniques can help break the impasse and encourage dialogue. Strategies such as adopting an engaged listening posture, using emotional labeling, posing "no" questions, and highlighting the risk of loss can effectively prompt the other party to start speaking and foster a more productive discussion.

https://www.cedr.com/9-steps-to-breaking-the-silence-in-negotiation/

Compulsory mediations: are they a useful ‘tool in the toolbox’?

Edward Fox of Fee Langstone looks at how compulsory mediation, under Section 145 of the Trusts Act 2019, allows the Court to order unwilling parties in trust disputes to participate in alternative dispute resolution, provided the dispute qualifies as an "internal matter." While it undermines the voluntary nature of mediation, this power has proven to be an effective tool, with high settlement rates even in cases where mediation was compelled, making it a valuable resource for resolving trust-related disputes.

https://www.feelangstone.co.nz/news/2025/3/11/compulsory-mediations-are-they-a-useful-tool-in-the-toolbox

Client Guide: Making the most of Mediation

Mediation is a form of Negotiated Dispute Resolution (ADR), which involves a process of structured ‘without prejudice’ negotiation facilitated by an impartial third party known as a ‘mediator’. The aim is to produce a settlement of the dispute that is acceptable to both parties, and the process enables them to retain control over whether or not they wish to settle, and on what terms. Click here for the link to download the guide created by Nicola Gare of HFW:

https://www.hfw.com/insights/client-guide-making-the-most-of-mediation/

Beware of Not Mediating a Dispute

A recent Irish High Court decision reduced a costs award. This reduction occurred because the plaintiffs’ solicitor failed to comply with the statutory obligation to advise about mediation before commencing proceedings. An English court has also recently imposed a greater reduction on recoverable costs arising from a party’s refusal to consider mediation. Gearoid Carey and Gerard Kelly, partners at Mason Hayes & Curran, examine this decision in the context of an apparent greater judicial willingness to get parties to mediate or else suffer potential cost consequences.

https://www.mhc.ie/latest/insights/beware-of-not-mediating-a-dispute#page=1

Refusing to mediate, When to mediateNic ScampionJuly 18, 2024Back to all Resources

7 Proven Steps for Drafting A Mediation Brief

Mark Fotohabadi of the ADR Times explores how a well-crafted mediation brief requires careful consideration of the audience, strategic timing, and a clear structure to effectively influence decision-makers. By addressing key factors, incorporating impactful exhibits, and concluding with a strong summary, attorneys can significantly enhance their chances of achieving favorable mediation outcomes.

https://adrtimes.com/mediation-brief/

Can unwilling parties be compelled to engage in alternative dispute resolution in litigation?

A recent Court of Appeal decision in England ruled that parties can be compelled to engage in alternative dispute resolution (ADR), departing from the traditional view that ADR is purely voluntary. While this decision raises questions about the future of compulsory ADR in Scotland, no similar requirement currently exists, though the ruling may influence future procedural developments.

https://www.mfmac.com/insights/litigation-dispute-resolution/can-unwilling-parties-be-compelled-to-engage-in-alternative-dispute-resolution-in-litigation/

Refusing to mediate, When to mediateNic ScampionMarch 27, 2024Back to all Resources

Churchill v Merthyr Tydfil Council: A game changing decision for local authorities

Phoebe Price of UK law firm Browne Jacobson, looks at how the Court of Appeal's decision in Churchill v Merthyr Tydfil Council allows courts to mandate parties to engage in non-court dispute resolution processes, such as negotiation, mediation, or internal complaints procedures, before taking legal action. This ruling provides local authorities with an opportunity to resolve low-value disputes more efficiently and cost-effectively by using their internal processes to address issues before resorting to litigation.

https://www.brownejacobson.com/insights/churchill-v-merthyr-tydfil-council-decision-for-local-authorities

Courts can compel parties to use Alternative Dispute Resolution

Francesca Muscutt and Millie Bailey of DAC Beachcroft look at the landmark decision, James Churchill v Merthyr Tydfil County Borough Council, where the Court of Appeal has ruled that the courts can stay proceedings and order parties to engage in Alternative Dispute Resolution (ADR), even where one or both parties have expressed an unwillingness to engage in the process.

The benefits of ADR have long been recognised. It is an efficient mechanism for resolving disputes quickly, privately and usually far more cheaply than taking a case to trial. The Pre-action Protocol for Professional Negligence (which covers claims against accountants and auditors) requires the parties to consider ADR before commencing court proceedings. The Court of Appeal decision in Churchill goes further by underscoring the importance of ADR even once proceedings are underway. The courts have the power to stay the proceedings and compel the parties to engage in ADR and there is an expectation this power will be exercised.

https://www.dacbeachcroft.com/en/What-we-think/Courts-can-compel-parties-to-use-Alternative-Dispute-Resolution

Building “Human Conscious” Organisations

Rebecca Attree of IPOS Mediation explains how a "human conscious" organisation fosters awareness of its societal role, prioritising ethics, culture, and stakeholder well-being over hierarchical control. By integrating self-management, wholeness, and evolutionary purpose, such organisations can enhance workplace harmony, resolve conflicts more effectively through mediation, and ultimately drive both human and business success.

https://mediate.co.uk/blog/building-human-conscious-organisations/

Compulsory ADR out of the weeds - will the court order parties to mediate?

Nicola Bridge, Leah Alpren-Waterman and Rob Wilson of Mishcon de Reya LLP explain that the recent UK Court of Appeal judgment in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 signifies a significant shift towards compulsory ADR, departing from the previous stance set in Halsey v Milton Keynes General NHS Trust; it highlights the court's newfound authority to order parties to engage in ADR, provided it aligns with principles of fairness, legitimate aims, and proportionality to achieving those aims and marks a pivotal moment in the evolution of ADR within the civil justice system.

https://www.mishcon.com/news/compulsory-adr-out-of-the-weeds-will-the-court-order-parties-to-mediate

Case reports, Refusing to mediateNic ScampionJanuary 30, 2024Back to all Resources

Compulsory Alternative Dispute Resolution?

The Court of Appeal in Churchill v Merthyr Tydfil County Borough Council held that courts can lawfully order parties to engage in alternative dispute resolution (ADR), as long as it does not infringe on their right to a fair trial and is a proportionate means of achieving a legitimate aim. While the decision did not mandate ADR in this case, it marks a significant shift by affirming judicial discretion to require ADR, potentially leading to more efficient and cost-effective dispute resolution.

https://www.charlesrussellspeechlys.com/en/insights/expert-insights/construction-engineering-and-projects/2024/compulsory-alternative-dispute-resolution/

Is mediation appropriate?, When to mediateNic ScampionJanuary 9, 2024Back to all Resources

Churchill v Merthyr Tydfil County Borough Council: The power of the courts to order parties to engage in dispute resolution

Peter Allchorne and Emma Fuller of DAC Beachcroft, look into the UK case of Churchill v Merthyr Tydfil County Borough Council, where the Court of Appeal ruled that courts can order parties to engage in alternative dispute resolution (ADR) processes, provided it does not impair their right to a judicial hearing and is proportionate. This decision opens the door for the courts to mandate ADR before trial, potentially leading to cost implications and further clarification on what constitutes adequate engagement with the process.

https://www.dacbeachcroft.com/en/What-we-think/Churchill-v-Merthyr-Tydfil-County-Borough-Council-The-power-of-the-courts-to-order-parties?utm_source=Vuture&utm_medium=Email&utm_campaign=06122023-Motor-PeterAllchorne

Real Practice Systems Project Menu of Mediation Checklists

John Lande writes that the Real Practice Systems Project's menu of mediation checklists, developed in collaboration with ADR Notable, provides mediators with structured guidance to refine their practice based on real-world complexities rather than oversimplified theories. These checklists help mediators consciously develop personalized systems, adapting to case-specific factors while also serving as a resource for educators, trainees, and researchers.

http://indisputably.org/2023/12/real-practice-systems-project-menu-of-mediation-checklists/

Designing the mediation, Preparing for mediationNic ScampionDecember 4, 2023Back to all Resources

A Successful Mediation

William Gilbride looks at how facilitative mediation has proven successful in resolving civil disputes, leading courts to refer cases to mediation earlier in the litigation process, even before discovery. Key strategies for effective mediation include holding joint sessions to encourage direct communication, allowing clients to speak for themselves, and carefully considering "final offer" strategies with the mediator to avoid prematurely ending negotiations.

https://mediate.com/a-successful-mediation/

Mediating insurance coverage disputes

Charles Gordon of IPOS explains that, mediating insurance coverage disputes can present unique challenges, such as navigating disputes over underlying claims, multiple insurers' involvement, remote/hybrid mediations, and insurance reserves, and offers suggestions as to how to assist in their resolution.

https://mediate.co.uk/article/mediating-insurance-coverage-disputes/

Insurance disputes, The mediation processNic ScampionOctober 24, 2023Back to all Resources

Compulsory Mediation for Small Claims introduced in the UK

DAC Beachcroft looks at how the UK has introduced compulsory mediation for claims up to £10,000, with key features including free mediation, remote one-hour sessions, and sanctions for non-participation. This move aims to ease the pressure on courts, and its timing aligns with the Irish government's focus on using alternative dispute resolution (ADR) to resolve disputes efficiently and cost-effectively, though mediation remains voluntary in Ireland for now.

https://www.dacbeachcroft.com/en/What-we-think/Compulsory-Mediation-for-Small-Claims-introduced-in-the-UK

A Checklist for Mediation Opening Statements

Emily Holland, a contributing Editor at ADR Times, explains how a well-crafted mediation opening statement sets the tone for a productive negotiation by establishing clarity, credibility, and cooperation. Mediators should focus on process guidance and neutrality, while parties should strategically present facts, strengths, and interests to influence the discussion and foster resolution.

https://www.adrtimes.com/mediation-opening-statements/

How to prepare for mediation – Angelina Jolie and Brad Pitt have agreed to turn to mediation to settle a long-running dispute, but what's the route to a successful resolution?

Arabella Murphy, director of Propitious (London) Ltd (risk planning, family governance and mediation) explains that preparing for mediation involves recognising the willingness to settle, understanding the private nature of the process, being open to creative solutions, utilising lawyers effectively, and adopting a flexible approach to negotiations to reach a mutually acceptable resolution.

https://spearswms.com/law/how-to-prepare-for-mediation-divorce-angelina-jolie-brad-pitt/

Charlie Irvine’s Challenge to Mediators to Describe Your Mediation System

Charlie Irvine reflects on the diversity of mediation styles and challenges mediators to articulate their personal "real mediation system." He encourages fellow practitioners to describe their approaches, noting that doing so not only highlights the variety of practices in the field but also helps mediators refine their own methods and gain a clearer understanding of their work.

http://indisputably.org/2023/08/charlie-irvines-challenge-to-mediators-to-describe-your-mediation-system/

Overcoming Clichés in Mediation

Jamil Shaaban, Civil Mediator at Shaaban Mediations, suggests ways to help parties overcome impasses, such as when they refuse to take the lead in making the opening offer, when there's a diminution of trust between the parties, and when they refuse to show their cards.

https://mediate.com/overcoming-cliches-in-mediation-author

Overcoming impasse, NegotiationNic ScampionApril 30, 2023Back to all Resources

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