Hybrid ADR - The Evolution of Mediation

Hybrid ADR – the Evolution of Mediation

Introduction

The standard model for mediation (a one day facilitated negotiation preceded by the exchange of mediation statements) is coming under pressure and is at risk of failing litigants. In response there are signs of evolution, as mediators and litigators adapt to the demands of compulsory mediation (in the UK and elsewhere) and the increasing expectations of clients. This note looks at what is driving this change, how mediation is evolving towards a “Hybrid ADR” model, and what the implications are for litigators and mediators.

The standard mediation model

If litigators were asked to describe a typical mediation, most would describe the following process; the parties select a mediator, they enter into a mediation agreement, a bundle of documents is prepared, the parties exchange mediation statements, and then the parties meet for a day and try, with the help of the mediator, to negotiate a settlement. That is the standard mediation model.

However the dispute landscape is changing and there are material questions about whether that standard model will be fit for purpose in the future.

Drivers of change – client expectations and compulsory mediation

Whilst litigation can be strategic, for most organisations and indeed individuals it is an unplanned, unbudgeted distraction, which diverts valuable resources away from core priorities, i.e. it’s a problem.In most organisations, when leaders are faced with a problem, they immediately bring together the right people to work out how they are going to fix it and then move on. Nothing is off the table, and they expect to be given ideas, options, answers, and they like to move quickly and decisively to put a solution in place.

On that basis, and in the context of disputes, waiting 2, 3, 4, or 5 years or more for an answer at trial is not an attractive prospect, particularly having regard to the expense and the risks involved in litigation. Whilst we need formal litigation and arbitration systems as backstops for when disputes cannot be resolved, in practical terms those processes do not fit with the needs of most clients. Instinctively, rationally and emotionally, most parties want their disputes resolving.

So mediation should be the ideal answer. In the UK, the government and the judiciary both think so, as mediation is now compulsory for most cases. However it is clear the mediation landscape is changing in a number of important ways, and the key question is whether the standard mediation model described above is capable of meeting these new emerging challenges.

In particular:-

• Difficult cases. As mediation is now compulsory, cases which were not previously considered appropriate for mediation, because of their value or complexity or both, will now be mediated. So the standard mediation model is increasingly having to grapple with more difficult cases.
• Sentiment. Cases are being referred for mediation regardless of the sentiments of the litigants. It is compulsory, not elective. That means in many cases parties are coming to mediation when they may not be engaged, or they may be sceptical of the merits of mediation (perhaps because of the inadequacies of the standard model), and view the process as a waste of time and money.
• Timing. Disputes are being mediated much earlier in the litigation lifecycle, often before proceedings have begun. That means mediation will be taking place sometimes before the cases of each side have stabilised or have been formally stated, and before key evidential elements have been developed (e.g. discovery, exchange of witness/expert evidence).

These dynamics are compounded by the views of some litigators. Many say they are in favour of mediation in principle but are not that enthusiastic in practice. For example the White & Case/Queen Mary University of London 2025 International Arbitration Survey found a decline in preference for the use of ADR, with many practitioners regarding it as a waste of time, and some citing poor management of ADR processes.

These challenges are underpinned by a key factor which has always been present, namely the “Separation Barrier”. Litigation is adversarial. Something happens which triggers a dispute, the parties fall out, they go to their lawyers, they each start work to build their best possible cases (understandably because the case may go to trial), all direct communication is cut off, and for all those reasons the parties move further and further apart. They are separated by the very process which is intended to help them resolve their dispute. Then at some point they agree to mediate, and a one day meeting is expected to reverse months, if not years, of adversarial trench warfare and bring the parties sufficiently close together to agree a settlement.

By way of example I was asked to mediate a case recently relating to a shareholders dispute. The dispute had been going on for two years, but proceedings had not yet been started. From appointment to one day mediation meeting there was period of just under three weeks. At the mediation meeting we could only start to deal with the animosity between the parties, the lack of clarity regarding their respective cases, and the evidential gaps which both parties were trying to exploit for their own benefit. The separation between them was simply too wide and too entrenched to be fixed in a day.

So mediation now must deal with more cases, of greater variety, of perhaps greater complexity and value, with perhaps also a higher proportion of participants who are not keen on the process, and often at time when the boundaries of the dispute and the evidential picture is not clear. For many of these cases the standard mediation model is simply not equipped to deal with these challenges and will not be fit for purpose.

Evolution to a “Hybrid ADR” model

We are starting to see is a shift towards private dispute resolution, in which the parties, their advisers and an independent (the mediator) work together to develop an efficient process for resolving the dispute, specifically an approach which addresses the particular needs of the case and the people involved, rather than shoehorning the dispute into an unsophisticated standard model.

This shift is underpinned by three main things: (1) a change in mindset; (2) the deployment of the broader ADR toolset; and (3) thinking differently about the role of the mediator.

Change in mindset

There are three parts to this:-

1. Static to creative. This involves a shift from seeing mediation as a relatively static, standard process, to thinking more broadly and creatively about what the approach needs to be to help the parties resolve their dispute. Instead of thinking that the only alternative to litigation is the standard mediation model, this is about thinking more critically and more creatively about what the dispute needs to get it settled.
2. Adversarial to inquisitorial. Adversarial philosophy is embedded in litigation and arbitration processes, and ultimately if the case does not settle the claim will be resolved for better or for worse at trial. But disputes do not need any more adversarial thinking to resolve cases through negotiation; the precise opposite is required, namely an interventionist, problem solving approach, which is going to get to the nitty gritty of the issues quickly, promote consensus, and increase the chances of reaching agreement.
3. Comfort with ambiguity. Business people are used to making important decisions when they do not have all the facts and perfect data. They develop options, assess risks, make assumptions about gaps in their knowledge and then make balanced judgements. In mediation we are rarely going to have all the information which will be available to a trial judge, especially as more cases are referred to mediation earlier in the case lifecycle, and so litigants, litigators and mediators all need to get comfortable with making decisions in that context.

So the change in mindset is fundamentally about thinking differently about mediation, rather than defaulting to the standard mediation model.

Deployment of the broader ADR toolset

In the Civil Procedure Rules the overriding objective talks about alternative dispute resolution, not mediation.

Section 1.1(2)(f) of the CPR says – “Dealing with a case justly and at proportionate cost includes, so far as is practicable – (f) promoting or using alternative dispute resolution”. And s.1.4 of the CPR, which deals with the courts duty to manage cases, states at para (2)(e) – “Active case management includes – ordering or encouraging the parties to use, and facilitating the use of, alternative dispute resolution”. Note the emphasis there upon ADR in general, not mediation specifically.

Equally in Churchill -v- Merthyr Tydfil [2023] EWCA 1416 the House of Lords talked about the court being able to stay proceedings to allow non-court-based dispute resolution processes to be pursued.

Mediation is not the only tool in the ADR toolset. Others include early neutral evaluation, conciliation, adjudication/expert determination, mini-trial, and management panels. Together they provide a menu of options to be adopted as necessary to the specific circumstances of a dispute.

Beyond those concepts the parties are free almost to do whatever they like. There are no laws, no rules, and no conventions which prescribe what you can or cannot go about trying to resolve a dispute. This is the super-power of ADR, but it is a power we rarely used as in most cases practitioners default to the standard mediation model.

So private dispute resolution presents an opportunity to the parties and their lawyers, assisted by a (mediator), to craft whatever process is required to address the specifics of their dispute, the differences between them and the barriers to settlement, using the broader toolset which ADR has to offer.

The appendix to this note contains a brief case study of a dispute I mediated recently which adopted this type of approach, which led to the settlement of the case.

Thinking differently about the role of the mediator

This Hybrid ADR approach to private dispute resolution depends upon the parties reaching consensus on the process and methodology to be adopted. Formal proceedings remain as an option or on standby if the approach fails, but within the private process there is no provision to compel a party to do anything they do not wish to do.

The role of the mediator therefore is not just to facilitate settlement negotiations, but also to broker agreement on the approach to be taken. In that capacity they can help the parties negotiate their way through agreeing what the resolution process is going to be, champion that process, ensure progress is made at the right pace and without wasting money, issue challenge when appropriate, get the process back on track when it falters, and ultimately mediate between the parties as they seek to agree a settlement.

So think about working with the mediator to create the process which is going to work best for the specifics of your dispute.

In summary this shift towards private dispute resolution through a Hybrid ADR approach is how mediation is already evolving. It involves thinking beyond the standard mediation model to a more hybrid approach to ADR with a more interventionist, inquisitorial and dynamic approach, which tailors the process to the specific needs of the dispute.

That mediation is already heading in that direction has been confirmed by a report published by CEDR (Centre for Excellence in Dispute Resolution) in December 2025, titled “Six Mediation Trends Shaping Mediation”. 3 of the trends they identify are (1) a growing demand for evaluative input (for that read a more interventionist, inquisitorial approach); (2) the use hybrid processes combining mediation with other ADR mechanisms (for that read, the deployment of the broader ADR toolset); and (3) mediation cases becoming projects (for that read tailoring a process to the dispute, rather than adopting the standard mediation model).

Implications and opportunities for litigators, law firms and mediators

When I started out as a newly qualified lawyer handling commercial litigation cases, there was one track to be followed – court proceedings conducted in accordance with the rules set out in the White Book. Cases settled but only when payments into court were accepted or as a result of direct negotiations between the parties, which were quite rare, unstructured and often took place on the first day of the trial.

ADR, including mediation, started to emerge in the UK in the 1990’s and was given voice when it was adopted as a cornerstone of the Woolf Reforms and embedded in the Civil Procedure Rules which were adopted in 1998. However whilst the number of mediations increased substantially, it was largely treated as being optional. The Churchill case in 2023 effectively made it compulsory. And now mediation is evolving into the Hybrid ADR model described in this note.

As a result most cases are going to settle through ADR rather than being resolved through formal court or arbitral processes, and that means litigators need to be as good at shepherding their clients through mediation and ADR as they are at guiding them through formal proceedings.

The question for law firms is how well equipped are their lawyers to excel in that new environment, i.e. helping litigators become effective ADR practitioners, or mediation advocates. The difference is important. ADR is fundamentally about negotiation, the dynamics of which are different to those of litigation. Most business people are good negotiators, and they expect their lawyers to be equally able.

Also as we move to a more inquisitorial, Hybrid ADR approach, a creative mindset and lateral thinking skills are going to be critical. The flexibility available with ADR gives litigators scope to shape a process which is more likely to secure a better outcome for their clients. Therefore it is important for lawyers to challenge themselves to acquire these new skills, and for law firms to provide pathways for their lawyers to acquire them.

For mediators they are going to have to think differently about their role. Some adopt a more passive approach, focussing on being a neutral facilitator. Others see it as their role to be more challenging and dynamic, and I put myself in that category. The burden of a shift to a more inquisitorial mindset falls principally on the mediator. They have to be prepared to step up, to lead, to be pro-active in suggesting ways forward and in managing the process to a successful conclusion for the benefit of the parties and their advisers.

Conclusion

In summary as mediation has become compulsory the standard model of mediation has come under pressure. It is responding, by shifting to a more inquisitorial approach in which the alternative process is tailored to the specifics to the dispute, using a hybrid mix of ADR tools as necessary to give the parties the best chance of reaching a settlement.

That is what I believe most litigants are looking for; they want their disputes resolving as quickly and as cheaply as possible, although of course not at any price. The litigators who are able to embrace this shift to private dispute resolution “Hybrid ADR”and in doing so position themselves as the problem solvers, the people who are thinking differently to find solutions, the people who are leading, will be able to differentiate themselves in what is quite a crowded dispute market place.

Case study

I acted as mediator in an arbitration case relating to a construction dispute revolving around an explosion which occurred on site. Initially the mediation followed the usual process (the standard mediation model). At the one day meeting some progress was made but it quickly became clear there were two major barriers to settlement which could not be overcome. The first was that a contractor who it was alleged could be liable was not a party to the proceedings or the mediation. The second was that the expert evidence had not been developed to a level which enabled clear conclusions or assumptions to be drawn about the cause of the explosion, a critical determinant of liability. As a result the case did not settle.

However the mediation agreement was kept open, and I worked with the parties to agree a process which would enable us to get back together with the right building blocks for settlement in place. The third party was persuaded to join the mediation, and we agreed a timetable for the completion and exchange of expert reports. We then structured the mediation day differently, with the first two hours being a meeting of the experts, moderated by me, to discuss the issues, their conclusions and identify common ground. The output of that session was then reported back to the parties in joint session, and then negotiations began again, and the case settled later that day. So we tailored a process which met the specific needs of this dispute at that time, rather than relying on the standard mediation model.

The case settled for three reasons – first the right parties were involved which meant that any settlement would bring the whole dispute to an end, leaving no awkward loose ends. Second through the expert evidence process the parties were able to develop a sufficient understanding of the evidence picture to enable them to better assess the litigation risks and therefore determine what a realistic settlement should look like. And finally the process gave the parties enough information, which although not perfect, was sufficient to enable them to justify rationally the settlement which was agreed.