Here are some of the books and cases we find interesting:

BOOKS

“Getting to Yes” Roger Fisher and William Ury

One of the earliest current classics in negotiation theory with fundamental application to mediation, this book has been widely read for good reason. It identifies the route to a solution as being so much more than what one person is asking for, and demonstrates clearly that the thinking in dispute resolution isn’t just about the demand made, or the response to it. Beyond that, it provides a framework for negotiation based on a focus on what might happen if there is no agreement or resolution. With that comes the need for courage to criticise ones own case, beliefs and demands, and the need to ask questions to generate answers.

“Conflict Coaching Fundamentals” Samantha Hardy

There is a lot to reflect on after reading this profound text. Samantha Hardy uses the context of story-telling to analyse how parties understand and might change their experiences of conflict. She explains two types of stories people tell: one is learning and growth (the tragedy), the other is injustice and suffering (the melodrama). The exploration of how stories are told, who to and why allows anyone reading this book to broaden their thinking about all forms of conflict.

“Difficult Conversations: How to Discuss what Matters Most” by Douglas Stone, Bruce Patton and Sheila Heen

It argues that all difficult conversations (of which the negotiation discussions that happen at mediations are an obvious example) really comprise three different conversations. They are described as the “What Happened?” Conversation, the Feelings Conversation and the Identity Conversation. To make progress in difficult conversations, we need to understand that people communicate (or try to communicate) on these three levels, to question assumptions, and lean into the difficult aspects, particularly on emotions and identity. Like Getting to Yes, this book was written by members of the Harvard Negotiation Project. Its fundamental premise is not dissimilar to that of Non-Violent Communication in that it’s about being curious about and probing what people actually mean but don’t or can’t necessarily what they say.

“Nonviolent Communication” by Marshall Rosenberg

Mark Twain observed that “Anger is an acid that can do more harm to the vessel in which it is stored than to anything on which it is poured”. This book contains a strategy for helping people to express that anger in a way that identifies the needs of theirs that are not being met by another person, and shows a way to make requests of others that would get those needs met. When used in some mediation settings, this same strategy can be adapted to enable both parties to identify both sets of needs and requests, and to shift it from an emotional issue into a collaborative and logical problem-solving exercise that can lead to resolution and a way forward.

“The Third Side: Why We Fight and How We Can Stop”  by William Ury

An inspiring book, it takes a high-level look at the history of conflict and the role of the “third side” in resolving it. William Ury argues that for the first 99% of human history, violence was not a common way of resolving disputes. Things became more complex with the advent of agriculture and the need to compete over limited resources. Going back to hunter-gatherer and early agrarian societies, third parties from the community have played a key role in preventing and resolving disputes. In the modern age, Ury looks at how the “Third Side” can stop disputes in three ways: prevention (e.g. teachers, community workers in bridge-building projects), resolution (e.g. mediators) and containment (witnesses, referees, peacekeepers).

“ The Fog of Peace: The Human Face of Conflict Resolution”  by Gabrielle Rifkind and Giandomenico Pico

Gabrielle Rifkind is a former psychotherapist, now director of the Oxford Process, a charity active in international back-channel diplomacy for peace-making. Geinadomenico Pico was a diplomat and UN Assistant General Director for Political Affairs who led numerous negotiations including those leading to the end of the Iran Iraq war and the freeing of 11 hostages from Lebanon including Terry Waite and Jon McCarthy. This fascinating book describes their experience and research in international mediated diplomacy from political and psychological perspectives, and makes a strong case for the power of communication in the most apparently hopeless circumstances.

“ The Dynamics of Conflict Resolution”  by Bernard Mayer

Bernard Mayer identifies five forces of conflict: communication, emotions, history, structure and values, which are driven by human needs (an overlap with Nonviolent Communication). He writes about how people behave in conflict, different roles, and the use of power. He goes on to analyse resolution on cognitive, behavioural and emotional levels, and argues that communication is central. He offers various techniques for exploring the forces of conflict and negotiating towards resolution.

CASES

DKH Retail Limited v City Football Group Limited [2024] EWHC 3231 (Ch)

Trademark dispute between the Superdry brand and Manchester City Football Club whose kit including the words “Super” and “Dry” on behalf of their sponsor Asahi Super “Dry” 0.0% lager.

The Claimant applied for an order for compulsory mediation before the trial citing Churchill (see above). The Court identified that the Civil Procedure Rules had now been amended. The Defendant’s position was that it was too late anyway because trial was imminent and this was a very entrenched case where mediation was unlikely to lead to settlement anyway. Key passages from the judgment are (emphasis added):

38. As to the last point, in many cases the parties' positions in the litigation are diametrically opposed and it may easily be said that each party requires a judicial determination. But nonetheless the parties come through ADR to recognise the desirability of settling for less than their strict legal rights and compromising their positions. Experience shows that mediation is capable of cracking even the hardest nuts. The process sometimes succeeds in cases where the parties appear at first to have intractable differences …

39 I see some force in the defendant's submission that it is late in the day to be seeking an order, but it may also be said that there is some advantage in the parties&  positions having been crystallised through pleadings and the service of witness statements. It is indeed sometimes an objection to mediation that it is premature, proposed at a stage when the parties' positions are unknown. That cannot be said here.

40 There is also some force in the submission of counsel for the defendant that these are commercial parties with experienced solicitors and that if there was realistically to be a settlement, one would have expected it already to have been reached. But that argument does not do full justice to experience, which shows that bringing the parties together through mediation can overcome an entrenched reluctance of parties to negotiate, even where sincere. The purpose of mediation is to remove roadblocks to settlement. I am unable to accept the submissions of the defendant that a mediation here has low prospects of success and that adjudication by a court is necessarily required. The range of options available to the parties to resolve the dispute through mediation goes beyond the binary answer a court could provide. There may be solutions other than yes or no.

The judge ordered that a mediation should take place during December 2024, A postscript to the judgment states “on 13 January 2025 the parties notified the court that they had settled their dispute”.

Mediation was ordered. The case did not return to trial.

Churchill v Merthyr Tydfil County Borough Council ( [2023] EWCA Civ 1416).

Probably the most important case on mediation. The Court of Appeal confirmed that courts can order parties to mediate (and participate in other non-court-based dispute resolution processes). It doing so, it overruled its own guidance made 19 years previously in Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576.

Mr Churchill had sued Merthyr Tydfil council alleging that knotweed from council land next to his house was damaging his property. The council applied to court to stay the claim so that the parties could go though the council’s complaints procedure (an alternative dispute resolution (ADR) process). The first instance judge dismissed the application, considering that he was bound to follow Halsey. Given the importance of the issue raised to mediation, the Law Society, Bar Council, Civil Mediation Council, CEDR and other bodies intervened.

In Halsey, the Court of Appeal had said that “to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court”. In Churchill, the court confirmed that this guidance was not part of the court’s essential reasoning in Halsey and was therefore non-binding. It concluded that courts “can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made does not impair the very essence of the claimant's right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute

fairly, quickly and at reasonable cost.”

Andrew Quay Hull LLP v Revenue and Customs [2024] UKFTT 842 (TC) (19 September 2024)

Concerned a mediation referred to as ‘shuttle mediation’ to clarify that that the participants didn’t interact with each other throughout the day. The appellant was appealing against one part of the settlement agreement which he interpreted as absolving him from liability for VAT. HMRC and the Tribunal disagreed. The judge found that the Appellant had agreed the wording under the misapprehension that the

penalty would not be payable, that HMRC was unaware of the mistake and that there was no real reason for HMRC to suppose the existence of a mistake. In the circumstances, the Appellant's unilateral mistake was not an operative mistake which

affected the formation of the settlement agreement, and the agreement was valid and binding.

Appiah & Anor v Leeds City Council & Anor [2025] EWHC 1508 (KB) (19 June 2025)

Claimant was sectioned under the mental health act and claimed against defendants for unlawful detention, false imprisonment, various ECHR breaches, including the administration of drugs by force. Her husband claimed for loss having been deprived of her company. Very sad circumstances. The defendant made a claim for Summary Judgment and strikeout, refused (for many reasons and a complete lack of evidence from the hospital being one, no single witness statement from any member of the treating team). By order 22 March 2024, Master Stevens ordered that any party not engaging in proposed ADR was to serve a statement giving reasons in 21 days. The claimant proposed mediation in March. The defendant said that since the claimant hadn’t produced any evidence, it was not a good time for mediation. Since then there had been silence on the issue. The judge determined that the defendant had not complied with the order. The order stated that a party ‘not engaging’ in ADR must explain why: not that a party ‘refusing’ to do so had to explain why. Interesting difference in interpretation and use of words.

SG and SW Re E (A Child) (Mediation Privilege) [2020] EWHC 3379 (Fam) 23 November and 7 December 2020.

Family / child care arrangements. Two mediations took place. One parent wanted the mediator’s notes and other notes and statement from mediator to be seen by court in response to efforts to redraft the child care arrangements.

Court refused: the public interest in allowing mediation to be a place for settlement without recourse to contested litigation is as strong today as it was in 1993 (case of In Re D). The father (who in this case wanted disclosure) was not asking for the ‘without prejudice rule’ to be disapplied because of risk to the child (which may have been an exception) but asked in the wider interests of justice and a fair trial, and for

the reasons of the “simple test of relevance”. Judge did not think that the pathway to the truth was though disclosure of otherwise privileged material.

Northamber v Genee World [2024] EWCA Civ 428.

Commercial litigation, several defendants.

• October 2021 Case Management Order – the parties had to consider settling the litigation by means of ADR, and if choosing not to do so that party must serve a witness statement explaining why within 21 days.

• February 2022 Claimant suggested mediation. Reminded the Defendants of the obligations in the order. One defendant said they’d take instructions; the other didn’t reply.

• Trial October 2022.

In the cost litigation that followed, the judge said that the offer of mediation was half hearted, and that the lack of response made no difference.

On appeal that description was rejected; silence itself was unreasonable, and breaching an order requiring them to consider and then serve witness evidence had consequences.

Paragraph 104

“If breaches of such orders are ignored by courts when deciding costs, parties will have no incentive to comply with them. That would undermine the purpose of making them, which is robustly to encourage parties to mediate”.

There was a 5% increase in cost penalty as a result.

(Relevant paragraphs 99 – 107).

Civil Procedure Rules

In accordance with SI 2024 No. 839 (L. 11) in October 2024 additions were made to the Civil Procedure Rules. Rules concerning the Court’s overriding objective, case management powers and cost sanctions have each had additional subparagraphs added.

1.1 f) adds ‘Promoting or using alternative dispute resolution’, to the overriding objective;

3.1O) adds ‘Order the parties to engage in alternative dispute resolution’ to the Court’s general powers of management;

28.7 (1) d) adds ‘Whether to order or encourage the parties to engage in alternative dispute resolution’ to the case management and directions to be given;

29.2 (1A) adds ‘When giving directions, the court must consider whether to order or encourage the parties to engage in alternative dispute resolution' to allocation considerations;

44.2 (5) e) adds ‘Whether a party failed to comply with an order for alternative dispute resolution or unreasonable failed to engage in alternative dispute resolution’ to the Court’s discretion as to costs.