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

What's the Matter With BATNA?

John Lande’s article challenges widespread misunderstandings about BATNA (Best Alternative to a Negotiated Agreement), arguing that it is often oversimplified in ways that mislead negotiators and hinder the pursuit of parties’ deeper interests. It urges attorneys, mediators, and educators to rethink how they teach and apply BATNA by considering uncertainty, bias, and non-economic outcomes.

http://indisputably.org/2025/03/whats-the-matter-with-batna/comment-page-1/

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

Four Ways to Keep the Other Side Talking During your Next Negotiation

To turn a reluctant negotiator into an engaged conversational partner, focus on maintaining strong presence, using open-ended questions through the "questioning funnel," and applying active listening skills like paraphrasing and summarizing. Once rapport is built, you can carefully explore more sensitive issues, having established trust and created a safe space for open dialogue. By Philip Williams, CEDR

https://www.cedr.com/four-ways-to-keep-the-other-side-talking-during-your-next-negotiation/

Five Reasons Mediations Fail – How to Avoid Them

Dr Karl Mackie looks at why mediations often fail due to five key factors: inadequate preparation, the wrong negotiation team, clients blind to litigation risks, overconfident advisers, and tactical or strategic misuses of the process. However, even when a settlement isn’t reached on the day, mediation frequently delivers value by clarifying positions, exposing risks, and laying the groundwork for future resolution, making the notion of “failure” often misleading.

https://www.cedr.com/five-reasons-mediations-fail-how-to-avoid-them/?utm_campaign=Commercial%2520Newsletter&utm_medium=email&_hsmi=154375266&_hsenc=p2ANqtz-9GboRphSIKmbDS1P8H6lfKadylgiNhPbPB7LvlGsByaYm2xE9WpdOk_Rw0hVpovKc2oYxndC9Xc_XU4n_F-gf1DPFgos4YuUi-FAITQlilgTx2WFo&utm_content=154375266&utm_source=hs_email

Failing to engage in ADR could leave you tied up in knots

Sam Dorne of the NZ Dispute Resolution Centre looks at why in Churchill v Merthyr Tydfil, the UK Court of Appeal ruled that courts can lawfully order parties to engage in Alternative Dispute Resolution (ADR), overturning a previous interpretation of the Halsey decision that suggested otherwise. This landmark judgment underscores that skipping ADR may have serious cost consequences, reinforcing the principle that parties should attempt settlement before resorting to litigation.

https://nzdrc.co.nz/failing-to-engage-in-adr-could-leave-you-tied-up-in-knots/

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

Expert Forms for Mediators

Expert mediators Bob Berlin and Carolyn L Raines have generously shared their full packet of expert mediation forms for anyone to use! These forms have been crafted over decades of practice to encompass all elements of the mediation process.

https://mediate.com/expert-forms-for-mediators/

Designing the mediation, Preparing for mediationNic ScampionJanuary 17, 2024Back to all Resources

Do you have to mediate? Almost certainly… yes

Gowling WLG look at the recent UK Court of Appeal decision in Churchill v Merthyr Tydfil confirming that courts in England and Wales can now lawfully compel parties to engage in alternative dispute resolution (ADR), including mediation, overturning the longstanding view from Halsey v Milton Keynes. This marks a shift toward a more proactive judicial stance on ADR, with courts emphasizing its role in achieving fair, cost-effective resolutions and signaling potential cost consequences for parties who unreasonably refuse to participate.

https://www.lexology.com/library/detail.aspx?g=894c16ba-e2ef-4ab2-83de-47091349fcfd&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2024-01-23&utm_term=

When to mediateNic ScampionJanuary 10, 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

How to Mediate a Conflict: A Detailed Guide

Emily Holland of ADR Times looks at how workplace conflicts are common and can disrupt team dynamics if left unaddressed, but mediation offers a structured, collaborative approach to resolve issues and strengthen relationships. By identifying the type of conflict and using key techniques—such as setting ground rules, active listening, and encouraging compromise—mediators can help employees find common ground and create a more harmonious work environment.

https://adrtimes.com/how-to-mediate-a-conflict/

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

How compelling is ADR? The UK Court of Appeal’s latest flirtation with mediation.

Charles Gordon of IPOS Mediation looks at how the UK Court of Appeal in Churchill v Merthyr Tydfil clarified that courts can, in appropriate circumstances, compel parties to engage in alternative dispute resolution (ADR) or stay proceedings, despite earlier judicial commentary suggesting otherwise. While emphasising that such orders must not infringe on the right to a fair trial, the ruling signals a growing judicial endorsement of ADR as a legitimate and potentially compulsory step in dispute resolution.

https://mediate.co.uk/blog/how-compelling-is-adr-the-court-of-appeals-latest-flirtation-with-mediation/

Is mediation appropriate?, Proposing mediationNic ScampionDecember 5, 2023Back to all Resources

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