Pre-Action Protocols and Mediation: From Encouraged to Expected

The direction of travel in civil justice is becoming increasingly clear. Mediation and other forms of dispute resolution are moving earlier in the process and closer to becoming the default.

For lawyers and clients alike, the question is no longer whether mediation will play a role, but when.

The Current Position

Pre-Action Protocols have always required parties to exchange information, set out their positions, and consider settlement before issuing proceedings.

They already include references to alternative dispute resolution. However, in practice, engagement with mediation at this stage has often been inconsistent. In many cases, it is considered, noted, and then deferred.

That position is beginning to shift.

Following the decision in Churchill v Merthyr Tydfil County Borough Council, the courts have made it clear that they can order parties to engage in ADR. That has strengthened the expectation that disputes should be resolved, where possible, without the need for litigation.

More recent decisions, including Superdry Plc v Manchester Ship Canal Company Ltd, also underline the courts’ increasing focus on how parties approach settlement and dispute resolution more generally.

At the same time, we are seeing the expansion of mediation pilots and increasing judicial encouragement to engage in ADR at an earlier stage.

Signals from the Master of the Rolls

The Sir Geoffrey Vos has been consistent in his messaging. The civil justice system must become more efficient, more digital, and more focused on resolving disputes rather than processing them.

A key part of that vision is the integration of mediation and other dispute resolution processes into the pre action stage.

In simple terms, this means moving mediation from something that happens after proceedings are issued, to something that is expected before they begin.

The Civil Justice Council Proposals

The Civil Justice Council has gone further, recommending a more structured and formal approach to pre action conduct.

Among the key proposals are:

• Greater consistency across Pre-Action Protocols 

• Stronger expectations that parties engage in a dispute resolution process before issuing proceedings 

• A move towards making PAP compliance effectively mandatory in most cases 

• Better integration of digital tools to guide parties through pre action steps 

• Importantly, the focus is not on mandating mediation in every case, but on requiring parties to engage meaningfully with an appropriate form of dispute resolution.

• In many commercial disputes, mediation will remain the most effective option.

What This Means in Practice

For lawyers, the implications are practical.

Waiting until proceedings are issued to consider mediation is becoming increasingly difficult to justify. The expectation is shifting towards:

• Identifying suitable mediators earlier 

• Advising clients on mediation at the outset 

• Using mediation strategically as part of the pre action process 

For clients, this should lead to faster and more cost effective outcomes. Disputes that might previously have taken months to reach a mediation stage may now be resolved before proceedings are even issued.

A Cultural Shift, Not Just a Procedural One

These developments reflect more than procedural reform. They point to a broader cultural change in how disputes are approached.

Litigation is no longer seen as the default pathway, but as one option within a wider dispute resolution framework.

Mediation sits at the centre of that framework because it offers flexibility, speed, and the ability to preserve commercial relationships.

An additional consideration at the pre action stage

As mediation moves earlier in the lifecycle of a dispute, there is often less structure around the process and less time for positions to become fully developed.

In that context, it is important to recognise that not all parties will engage with the process in the same way.

Neurodiversity, communication styles, and differing approaches to decision making can all have a material impact on how a mediation progresses, particularly at an early stage where positions may still be fluid.

A mediator who is alive to these dynamics, and able to adapt their approach accordingly, can make a significant difference to the prospects of settlement.

The Importance of Getting It Right Early

As mediation moves earlier in the lifecycle of a dispute, the importance of selecting the right mediator becomes even more critical.

At the pre action stage, parties often need:

• A mediator who can quickly understand the issues 

• Strong commercial awareness 

• The ability to engage parties who may not yet be fully aligned on the process 

• This is where careful selection and experience make a real difference.

Mediator Locator works with a nationwide panel of experienced lawyer mediators, helping law firms and clients identify the right mediator for each dispute.