The question nobody asks

When a dispute arises — a contract goes wrong, a business relationship sours, a boundary becomes a battleground — most people do one of two things. They call a solicitor. Or they do nothing and hope the problem resolves itself.

The second option rarely works. The first option is expensive, slow, and — in the majority of civil disputes — unnecessary.

There is a third option. It has existed for decades. It resolves most disputes in a day. It costs a fraction of what litigation costs. It keeps the outcome in the hands of the parties rather than a stranger in a courtroom. And it is almost never the first thing a solicitor suggests.

That option is mediation. This article is an honest account of why it should be the first conversation — not the last resort.

The honest comparison

Before anything else, the numbers. Not the headline figures from law firm brochures — the actual costs that parties in civil disputes face.

Factor	Mediation	Litigation
Cost per party	£500 – £800	£5,000 – £50,000+
Time to resolution	Hours to days	12 – 36 months
Who decides the outcome	The parties	A judge
Privacy	Fully confidential	Public record
Relationship preservation	Possible	Unlikely
Success rate (day of)	70 – 80%	Most settle — but late
Outcome certainty	High — parties agree	Low — judge decides

The last row in that table deserves particular attention. One of the persistent myths about litigation is that it produces clarity. That going to court means getting a definitive answer about who was right.

It does not. Most civil claims settle before trial. The question is not whether they settle — it is when, and at what cost. Parties who could have settled in January for £10,000 often settle in October for the same amount, after spending £30,000 each in legal fees reaching the same conclusion.

Why lawyers don't tell you to mediate

This is the uncomfortable part. I am qualified as a solicitor of the Supreme Court of England and Wales. I understand the legal profession from the inside. And what I am about to say reflects a structural reality that most lawyers privately acknowledge and publicly ignore.

The billing metric

Solicitors bill by the hour. This is not a conspiracy — it is a business model. But it creates a structural conflict of interest that parties in dispute rarely appreciate. A dispute that settles in mediation after one day generates perhaps two or three hours of a solicitor's time. A dispute that litigates to trial generates hundreds of hours.

No individual solicitor sits down and calculates how to maximise their fees at a client's expense. But the billing model creates incentives that do not always point towards the fastest, cheapest resolution. A solicitor who suggests mediation is, in a real sense, recommending themselves out of significant future income.

The structural conflict

The second issue is subtler. Litigation is adversarial. Its entire logic is built on the premise that the parties are opponents, that one will win and one will lose, and that the job of each solicitor is to maximise the outcome for their client. This framing is professionally appropriate within a litigation context. But it can make it harder for solicitors to recommend an alternative process where the framing is fundamentally different.

Mediation is not about winning. It is about finding an outcome that both parties can live with. That is a different mindset, and it can be difficult for lawyers trained in adversarial practice to naturally recommend it.

The lose-lose reality

The third issue is the outcome itself. Litigation, even when you win, is often a loss. You spend years in proceedings. You incur costs that you may or may not recover. You damage or destroy a business relationship. You sit in a courtroom and replay the worst period of your professional or personal life in public. And at the end of it, you get a judgment — which you may still have to enforce.

Mediation offers an exit from this loop. Not always. Not in every case. But in the majority of civil disputes between parties who are both capable of engaging in good faith, it offers a route to resolution that litigation simply cannot match.

When mediation is appropriate

Mediation works best in disputes where:

• Both parties have something to gain from resolution — financial certainty, a preserved relationship, the end of distraction
• The facts are not wildly in dispute — both parties broadly agree on what happened, but disagree on what it means or what should follow
• There is a commercial relationship or ongoing connection between the parties that both have reason to preserve
• The cost of litigation would be disproportionate to the value of the dispute
• Both parties are willing to engage in good faith — not weaponise the process

Civil and commercial disputes — contract disagreements, property matters, professional negligence claims, neighbour disputes, partnership breakdowns — are almost always suitable. Workplace disputes, where the employment relationship or the team needs to survive, are frequently better resolved through mediation than tribunal. Family matters — arrangements for children, financial settlements on separation — benefit enormously from the privacy and flexibility of mediation compared to family court proceedings.

When mediation is not appropriate

I will not pretend mediation is always the answer. It is not. There are categories of dispute where litigation or other formal processes are necessary:

• Domestic abuse or significant power imbalance — Mediation is not appropriate where one party has abused the other, or where there is a power imbalance so significant that any negotiation would be inherently unfair. Safety must come first. Family cases involving domestic abuse are screened before any mediation proceeds.
• Criminal conduct — Mediation is a civil process. Where there is fraud, theft, or other criminal conduct, the appropriate route is the police and the criminal courts. A civil dispute that also involves criminality needs legal advice before any other step is taken.
• One party refuses — Mediation is voluntary. You cannot force someone to mediate. If the other party refuses, the court can note this — and may draw adverse inferences — but you cannot compel participation. A MIAM certificate can be obtained to allow court proceedings to commence.
• Urgent injunctions — Where immediate court intervention is required to freeze assets, prevent a transaction, or protect someone's safety, the courts must act first. Mediation can follow once the immediate position is secured.

The mediation process, step by step

Many people come to mediation without knowing what to expect. The process is structured — far more structured than most people anticipate — and the structure is what makes it work.

1. The scoping call

Before any mediation begins, both parties (or at minimum one party) should have a conversation with the mediator about the dispute, its nature, and whether mediation is appropriate. This is free. It is also the single most important step, because it filters out the cases where mediation is not suitable and ensures that the parties who do proceed are likely to reach resolution.

2. The agreement to mediate

Both parties sign a formal agreement to mediate, which sets out the terms of the process — crucially including a confidentiality clause. Nothing said in mediation can be used in subsequent court proceedings. This is what allows frank conversations to happen. Parties can acknowledge weakness in their own position, explore options, and make offers without fear that any of it will appear before a judge if the mediation fails.

3. Position statements

Each party prepares a short document — typically two to four pages — setting out their position and what they want to achieve. This is not a statement of case. It is not a legal document. It is a focused description of the dispute from their perspective, and an indication of what resolution looks like to them. It is shared with the mediator in advance, and usually (but not always) with the other party.

4. The mediation day

The mediation itself typically proceeds in three phases. A joint opening session, where both parties (and their advisers, if any) are in the same room and each has the opportunity to speak — often for the first time directly to each other in a structured setting. Private sessions (caucuses), where the mediator meets each party separately. And shuttle diplomacy, where the mediator moves between the parties carrying proposals and responses, narrowing the gap between positions until settlement is within reach.

Most mediations resolve. The resolution rate for civil and commercial mediation in England and Wales is consistently cited at 70–80% on the day. Many of those that do not settle on the day settle shortly afterwards, having opened a conversation that would not otherwise have happened.

5. The settlement agreement

When agreement is reached, it needs to be documented. This is the moment where most mediators hand the parties a template and advise them to see a solicitor. The deal is in principle, but not yet in writing. Not yet binding. Not yet done.

Because I am a solicitor (non-practising), I can draft the settlement agreement as part of the mediation itself. It is written during the session, reviewed by both parties, and signed before anyone leaves the room. It is legally binding from that moment. No follow-up required. No additional legal cost.

MIAM — what you need to know before family court

If you are considering applying to the family court — for a child arrangements order, a financial remedy order, or most other family orders — you are required by law to attend a Mediation Information and Assessment Meeting (MIAM) before issuing proceedings, unless an exemption applies.

A MIAM is not a mediation. It is a meeting with an accredited mediator who explains the mediation process, assesses whether the dispute is suitable for mediation, and issues the relevant certificate — either confirming mediation is appropriate (in which case mediation may be offered) or confirming an exemption, which allows you to proceed to court.

MIAM exemptions include cases involving domestic abuse, urgency, and situations where the other party refuses to attend. The mediator assesses and certifies these — the process is not a barrier to court access for those who genuinely need it. It is a filter that diverts into mediation those cases where mediation is likely to work.

The MIAM fee at Mediate Don't Litigate is £150 per person.

The costs argument, summarised

The financial case for mediation does not require detailed analysis. Consider a typical small business dispute — a contract disagreement where one party claims £25,000.

In litigation, both parties spend £10,000–£20,000 in solicitors' fees to fight a claim worth £25,000. The winning party may recover some costs — but not all, and not without further proceedings to enforce the costs order. The losing party pays their own costs plus a contribution to the other side's. The dispute takes 18 months. Management time is consumed. The relationship is destroyed.

In mediation, each party pays £800. The dispute resolves in one day. The outcome is decided by the parties. If there is a commercial relationship worth preserving, it may survive. The settlement is drafted and signed the same day.

The comparison is not close. The question is not whether mediation is cheaper. It clearly is. The question is why it remains the exception rather than the rule.

The answer — as I have described above — is structural. The legal system is not designed to minimise the cost of dispute resolution. It is designed to resolve disputes through an adversarial process in which lawyers play a central and well-compensated role. Mediation sits outside that system. Which is why the people best placed to recommend it — lawyers — have the least commercial incentive to do so.

This article is the founding piece of Mediate Don't Litigate — a civil and commercial mediation practice built on a single conviction: that resolution should not require years of stress and tens of thousands in legal fees. If you are in a dispute and wondering whether mediation might be appropriate, the scoping call is free. Thirty minutes. No obligation. If mediation is not right for your situation, I will tell you.