Introduction
Mediation has become an integral part of dispute resolution in England, particularly in the commercial sphere. Its growth reflects a broader shift within the civil justice system toward encouraging settlement, reducing litigation costs, and promoting more efficient outcomes. Understanding the historical development of commercial mediation in England—and the models that underpin its practice—provides useful context for how mediation operates today.
The History of Commercial Mediation in England
Something akin to mediation can trace its roots in England back to the 15th century but modern commercial mediation has its origins in the United States and began to take shape in England in the latter part of the 20th century. It is perhaps no surprise that modern mediation has its origins in the USA because it is in the USA that the twin evils of cost and delay in the litigation process are at their most acute. Commercial mediation in England began to gain real momentum in the 1990s. A pivotal moment was the introduction of the Civil Procedure Rules (CPR) in 1999 following the Woolf Reforms, which aimed to modernise the civil justice system.
The reforms emphasised proportionality, efficiency, and active case management by the courts. Crucially, they also encouraged parties to consider alternative dispute resolution (ADR), including mediation, at an early stage. Courts were given powers to stay proceedings to allow for mediation and, over time, judicial attitudes increasingly favoured mediation to the point that at least one very senior Judge suggested that ADR should be rebranded DR (Dispute Resolution) because it deserved a place on the centre stage for the resolution of disputes.
Subsequent case law reinforced this trend. Courts began to impose cost consequences on parties who unreasonably refused to mediate, such that they would often forfeit some or all of their costs entitlement from success at trial.. This marked a significant cultural shift: mediation was no longer seen as optional or peripheral, but as a central component of dispute resolution strategy.
Today, mediation is widely used in commercial disputes across sectors, supported by institutions, professional bodies, and a well-developed market of accredited mediators.
Mediation Models Practised in England
Mediation in England is not confined to a single methodology. Instead, practitioners draw on a range of models, often blending approaches depending on the nature of the dispute, the parties involved, and the stage of proceedings.
Facilitative Mediation
Facilitative mediation is the most commonly practised model in England, particularly in commercial disputes. This approach is most in tune with the very ethos of mediation which is to focus on parties’ underlying interests rather than their stated positions.
In this approach, the mediator:
The emphasis is on party autonomy and self-determination. The mediator guides the process but does not direct the outcome. This model aligns closely with the traditional understanding of mediation as a consensual and non-adjudicative process.
Evaluative Mediation
Evaluative mediation is also sometimes used, especially in complex commercial disputes where parties seek a reality check on their legal positions.
In this model, the mediator may:
Evaluative techniques are often employed by mediators with strong legal backgrounds, such as former barristers or judges. It may be said that this approach departs from the core principles of mediation but in practice it is sometimes used—either as a primary model or alongside facilitative methods. In the writer’s view pure evaluative mediation is undesirable, if only for the reason that the mediator will have only a small proportion of the evidence and and case law which would be placed before the judge at trial.
Transformative Mediation
Transformative mediation is less common in commercial contexts in England but is recognised as a distinct model.
It focuses on:
This approach is more commonly associated with community or workplace disputes, where relational dynamics are central. In commercial mediation transformative techniques tend to play a more limited role.
Hybrid and Pragmatic Approaches
In practice, most commercial mediators in England adopt a flexible, hybrid approach. A mediation may begin in a facilitative mode—exploring interests and encouraging dialogue—before shifting into a more evaluative stance if parties reach an impasse and both agree to ask the mediator for a view.
This pragmatic blending reflects the expectations of commercial parties, who often value both process management and informed input on legal and commercial realities.
The Role of the Courts
The courts in England continue to play a significant role in promoting mediation. Judicial encouragement, combined with the risk of adverse cost orders for unreasonable refusal to mediate, has embedded mediation within the litigation landscape.
Recent developments suggest an even stronger endorsement of ADR, with increasing openness to mandatory mediation in certain categories of disputes. Thanks to a recent Court of Appeal decision the courts in this country now have power to mandate the parties to mediate and can impose sanctions if one declines to do so. This reinforces the importance of understanding the different models and how they may be applied.
Conclusion
Commercial mediation in England has evolved from a relatively niche practice into a mainstream dispute resolution tool, strongly supported by both the courts and the legal profession. Its development has been shaped by procedural reform, judicial encouragement, and the practical needs of commercial parties.
While facilitative mediation remains the dominant model, evaluative and hybrid approaches may play a part. The flexibility to adapt techniques to the needs of each dispute is a defining feature of mediation in England, contributing to its continued growth, effectiveness and popularity. The overwhelming majority of mediations result in settlement and that on average will save in the region of 80% of the costs if the matter were to go to trial. There are also of course other very considerable advantages of early resolution.