10 Major Disputes That Settled Through Mediation – and Some You May Never Have Heard About

Trials produce judgments which remain in the law reports for decades. Successful mediations usually produce the opposite: a settlement, confidentiality and the disappearance of the dispute. But look hard enough and some remarkable examples emerge.

One of the difficulties with writing about successful mediation is that the successes tend to disappear.

Trials produce judgments. Judgments are published, indexed, discussed by lawyers and sometimes reported in the newspapers. Twenty years later we can still read precisely what the judge decided.

A successful mediation generally produces the opposite. The parties sign an agreement, the proceedings come to an end and everybody goes home. Very often the terms are confidential. Sometimes even the existence of the settlement attracts little publicity.

This creates a slightly distorted picture of civil litigation. We have an enormous public library of cases which went all the way to judgment, but no equivalent library containing the disputes which didn't.

Nevertheless, if you look hard enough, quite a few emerge. Sometimes we know about them because the parties announced the settlement. Sometimes a later judgment refers to an earlier mediation. And sometimes the barristers, solicitors or mediators involved are permitted to describe the dispute anonymously afterwards.

They range from Grenfell and the Post Office litigation to patent disputes, shareholder battles, catastrophic injury claims and arguments arising out of the foot-and-mouth epidemic.

Here are ten examples — or, more accurately, ten windows into a much larger and largely invisible body of mediated settlements.

1. Grenfell Tower

It is difficult to imagine a dispute further removed from the stereotypical image of two businesses arguing over an unpaid invoice.

Following the Grenfell Tower fire, hundreds of bereaved family members, survivors and residents brought civil claims against a large number of defendants.

The litigation was enormous. It was also inevitably about considerably more than money.

In 2022 Senior Master Fontaine stayed the Grenfell litigation to allow an ADR process to continue. What followed was a lengthy process behind closed doors, mediated by Lord Neuberger, the former President of the Supreme Court.

In March 2023 a settlement was reached with 904 claimants through ADR. Contemporary reporting put the financial settlement at approximately £150 million.

But concentrating on the £150 million misses something important.

The settlement also incorporated restorative justice commitments. The London Fire Commissioner committed £8.25 million to a Grenfell Memory Project, intended to be shaped in consultation with the Grenfell community.

That seems to me a particularly powerful example of the difference between a judgment and a settlement.

No amount of money could undo what happened at Grenfell. Nor did the civil settlement bring every legal or public process arising from the tragedy to an end.

But mediation allowed the parties to construct something which went beyond the conventional payment of damages.

2. Bates v Post Office

The Post Office Horizon litigation is a more complicated example because history has subsequently demonstrated that settlement of litigation and resolution of an injustice are not necessarily the same thing.

More than 550 subpostmasters brought the group litigation led by Alan Bates against the Post Office.

After years of litigation, the parties entered mediation.

In December 2019 they announced a £57.75 million settlement following several days of mediation.

The contemporary joint statement described the mediation as respectful and challenging, but ultimately successful.

We now know, of course, that this was nowhere near the end of the Horizon story. The amount remaining for individual claimants after litigation funding and legal costs proved deeply controversial, and subsequent developments led to further compensation schemes, overturned convictions and the statutory public inquiry.

That doesn't make the mediation unsuccessful.

It illustrates something rather more subtle.

A mediator can settle the dispute which the parties bring to mediation. A settlement cannot necessarily cure every wider institutional injustice surrounding it.

Indeed, without the Bates litigation and its eventual resolution, much of what followed might never have happened.

3. Alder Hey – when money wasn't really the answer

For mediators, the Alder Hey organ-retention litigation may be an even more interesting example than either Grenfell or the Post Office.

Some 1,154 parents began litigation after it emerged that Alder Hey had retained organs and tissue from deceased children without the parents' consent.

Mediation began in March 2002.

The resulting settlement included a £5 million payment, broadly equivalent to £5,000 for each child.

If that had been all it achieved, one might reasonably ask whether years of litigation and mediation had really addressed what these families were complaining about.

But it wasn't all.

The hospital publicly apologised. It pledged to erect a plaque commemorating the children, contribute towards a memorial and pay £100,000 to a charity chosen by the parents. It also agreed to press for reform of the law relating to organ retention.

That is mediation doing something which lawyers occasionally forget about when we reduce cases to schedules of loss.

The parents wanted compensation. But they also wanted acknowledgement.

A court can award damages. It is considerably harder for a court to manufacture a meaningful apology.

4. British Airways and the 16,000 data-breach claimants

The British Airways data litigation shows mediation operating at scale in a completely different context.

The litigation arose from BA's 2018 data breach, which affected hundreds of thousands of customers and staff.

More than 16,000 people became involved in what was described as the largest opt-in data-breach group action then brought in the UK.

By 2021 the litigation was before Mr Justice Saini and had already generated reported case-management decisions.

Then it settled.

The court-appointed lead solicitors reported that a resolution had been reached following constructive mediation with British Airways. The settlement provided compensation for qualifying claimants but contained no admission of liability. Its financial terms remained confidential.

There is perhaps nothing especially dramatic about that outcome.

And that is precisely the point.

Potentially vast group litigation involving thousands of individual claims and complicated questions of data protection, causation and damages simply ended without a trial determining liability.

5. The foot-and-mouth disputes – and a mediation which came back to court

Occasionally we know rather more about a mediation because something happens afterwards.

That was the case with disputes involving Cumbria Waste Management and Lakeland Waste Management arising out of the 2001 foot-and-mouth epidemic.

Cumbria claimed approximately £4.54 million from DEFRA for unpaid invoices. Lakeland claimed approximately £1.72 million.

There were two mediations.

The first took place in July 2004 and the second in February 2005.

On 28 February 2005 the disputes were settled, with DEFRA paying £3.9 million to Cumbria and £1.4 million to Lakeland.

Ordinarily that might have been the last anybody outside the dispute heard about it.

It wasn't, because the companies subsequently brought professional-negligence proceedings against their former solicitors.

That produced the reported decision in Cumbria Waste Management Ltd & Anor v Baines Wilson (A Firm) [2008] EWHC 786 (QB), concerning disclosure and the confidentiality of the earlier mediation process.

As a result, we have the unusual luxury of a High Court judgment actually recording the claims, the mediations and the eventual settlement figures.

There is also a useful reminder here that mediation need not succeed on the first attempt.

The first mediation didn't finally resolve matters.

The second did.

6. Stretchline v H&M – settling patent litigation

Patent litigation might not immediately strike everyone as obvious territory for mediation.

The dispute between Stretchline and H&M concerned a patent for tubular fabric used in underwired garments.

Stretchline brought infringement proceedings. H&M denied infringement and counterclaimed for revocation.

Those proceedings were settled following mediation and a settlement agreement was entered into in October 2011.

The settlement was wide-ranging and dealt with more than merely the immediate UK patent proceedings.

Unfortunately, the story didn't quite end there.

Further proceedings were subsequently brought, and that is why we know so much about the first settlement.

In Stretchline Intellectual Properties Ltd v H&M Hennes & Mauritz UK Ltd [2015] EWHC 3298 (Pat), Mr Justice Henry Carr records expressly that the earlier proceedings “were settled following a mediation”.

It is perhaps an example both of the strength and the limitations of settlement.

Mediation can resolve extraordinarily complicated commercial and intellectual-property litigation.

But a settlement agreement still has to survive contact with the future.

7. Equifax and Ticketmaster – the settlements which don't produce judgments

The British Airways litigation wasn't an isolated use of mediation in mass data claims.

Solicitor Kingsley Hayes, who led a number of the early UK data-breach group actions, records that the mass claims against British Airways, Equifax and Ticketmaster were successfully settled following mediation and negotiation.

In the Ticketmaster case we can trace the litigation before settlement. Proceedings seeking substantial damages were issued in the High Court on behalf of individuals affected by the company's data breach.

What we cannot do is open a reported judgment and discover the eventual price of settlement.

That is not particularly surprising.

The settlements were confidential.

I include them because they expose one of the problems with trying to measure mediation by reported cases.

If mediation works as intended, there may be no judgment to report.

The lawyers involved may be the only public source confirming what happened.

There is nothing unsatisfactory about that, provided the source is made clear.

8. The £15 million defence-contractor dispute – and the world of anonymous commercial mediation

Then we enter a rather different world.

St John's Chambers records a dispute involving a major defence contractor and former shareholder-directors.

It was worth more than £15 million.

There was an unfair-prejudice petition and counterclaim, offshore companies and major Ministry of Defence contracts.

And then the matter settled at mediation.

We don't know the parties. We don't know what was paid.

Nor should we.

What is interesting is that this is not remotely exceptional.

Start looking through the publicly available professional records of commercial barristers and mediators and examples appear everywhere.

Exchange Chambers, for example, records X v Y, four related proceedings arising from the claimant's employment and subsequent dismissal as managing director. They involved shareholder, director and employment claims valued at more than £20 million.

Settled at mediation.

The same barrister records A v B, a multi-million-pound claim following termination of a motor franchise.

Settled at mediation.

And D v T, a claim by a bus company worth more than £1 million against a regional transport authority concerning allegedly underpaid concessionary fares.

Again, settled at mediation.

None generated a celebrated judgment.

That was rather the idea.

9. £4 million for blindness and £3 million for catastrophic injury – serious injury cases settle this way too

It would be easy to conclude from the examples so far that mediation is principally a device for commercial disputes.

It isn't.

12 King's Bench Walk records a clinical negligence case involving a claimant who was rendered permanently blind following a failure to treat raised intracranial pressure secondary to cerebral venous thrombosis.

The claim settled at mediation for more than £4 million.

Other chambers report similarly substantial personal-injury and clinical-negligence settlements at mediation, including a claim involving a young person who suffered severe degloving injuries, chronic pain and psychiatric consequences which settled for £3 million at mediation.

These cases are worth mentioning because the dynamics are very different from a dispute over a share-purchase agreement.

For an insurer or NHS body, settlement may ultimately be a financial decision.

For a catastrophically injured claimant and their family, it may determine accommodation, care and financial security for decades.

There is something quite significant about entrusting a mediation with decisions of that magnitude.

10. And then there are hundreds of cases we will never know about

Perhaps the most revealing category is the last one.

Published mediator and barrister case histories contain numerous examples of substantial disputes which have ended at mediation.

They include construction disputes worth many millions of pounds, shareholder disputes involving valuable businesses, intellectual-property claims, employment disputes and complex commercial cases.

Exchange Chambers records X v Y, the £20 million-plus employment, shareholder and director litigation mentioned above.

Settled at mediation on confidential terms.

It records A v B, the multi-million-pound motor-franchise dispute.

Settled at mediation on confidential terms.

It records D v T, the £1 million-plus transport-authority dispute.

Settled at mediation on terms favourable to the claimant.

Other barristers' and mediators' published case histories tell the same story.

There must be thousands more.

We don't know about them because confidentiality did exactly what the parties wanted it to do.

The invisible case law of mediation

There is a curious paradox here.

If you want evidence that litigation works, there are law reports stretching back centuries.

If you want equivalent evidence that mediation works, you have to look rather harder.

That is partly because a trial is a public event and mediation is generally a private one.

But it is also because the outputs are completely different.

The successful trial creates a judgment.

The successful mediation often creates silence.

The claim disappears from the court list. The parties stop incurring costs. Businesses go back to doing business. Insurers make payments. Families receive compensation. Shareholders buy one another out. Occasionally somebody apologises.

And the next reported case takes its place on the court list.

The examples above are therefore probably better regarded not as exceptional mediations but as the small number which happen to have left a public footprint.

Grenfell demonstrates that ADR can be adapted to claims involving hundreds of people and almost unimaginable human consequences.

Alder Hey demonstrates something different: that the important terms of a settlement may not be financial at all.

The Post Office litigation shows both the power and the limitations of settlement.

The BA, Equifax and Ticketmaster cases show mediation operating in mass consumer litigation.

Cumbria Waste Management and Stretchline are particularly valuable because subsequent High Court judgments allow us to see mediated settlements which would otherwise have remained largely invisible.

And the anonymous cases reported by barristers and mediators demonstrate something perhaps more important still.

Day after day, substantial disputes involving millions of pounds are being resolved at mediation without anybody outside the room ever knowing very much about them.

That is not a defect in the process.

It is largely the point.

For the companion pieces in this series, see 10 Cases That Show Why Litigation Should Sometimes Be the Last Resort, 10 Warning Signs That It May Be Time to Mediate and 10 Types of Dispute That Are Particularly Suited to Mediation.

Peter Causton is a barrister, civil and commercial mediator and Director of ProMediate (UK) Limited.

Sources and further reading

The references below distinguish between reported court decisions, official statements and the published professional accounts of the solicitors, barristers and mediators involved.

• Grenfell Tower — official: London Fire Brigade, Grenfell Memory Project (recording the March 2023 Civil Settlement Agreement with 904 ADR claimants and the £8.25 million pledge). Contemporary reporting: The Guardian, Grenfell Tower fire: Lord Neuberger to mediate in litigation process; BBC News, Grenfell Tower fire: Civil settlement claim worth £150m.
• Bates v Post Office — official: UK Parliament, Post Office: Horizon Accounting System (Hansard, House of Lords, 25 February 2020), recording the mediation and the £57.75 million settlement; and the Post Office's own statement, Post Office response to Group Litigation Judgment.
• Alder Hey — Law Society Gazette, Alder Hey apologises to parents after mediation, recording the £5 million payment, the apology, the plaque and memorial and the £100,000 charitable payment; The Guardian, Alder Hey parents accept out-of-court settlement.
• British Airways data breach — reported decision: Weaver & Ors v British Airways Plc [2021] EWHC 217 (QB) (BAILII); Law Society Gazette, BA settles biggest ever data group claim, reporting the settlement following mediation as announced by the court-appointed lead solicitors.
• Cumbria Waste Management — primary judgment: Cumbria Waste Management Ltd & Anor v Baines Wilson (A Firm) [2008] EWHC 786 (QB) (BAILII), paragraphs 2–3 recording the £4.54 million and £1.72 million claims, the £3.9 million and £1.4 million settlements and the two mediations in July 2004 and February 2005.
• Stretchline v H&M — primary judgment: Stretchline Intellectual Properties Ltd v H&M Hennes & Mauritz UK Ltd [2015] EWHC 3298 (Pat) (BAILII), paragraph 2 recording that the earlier proceedings were settled following a mediation and identifying the settlement agreement of 3 October 2011.
• Equifax and Ticketmaster — professional account of the solicitor involved (not a reported judgment): KP Law, Kingsley Hayes, Partner and Head of Data & Privacy Litigation, recording that the British Airways, Equifax and Ticketmaster mass data-breach claims were settled following mediation and negotiation.
• Anonymous commercial mediations — published barrister case histories: Exchange Chambers, Stephen Connolly – Commercial, recording X v Y (£20 million-plus shareholder, director and employment proceedings), A v B (multi-million-pound motor-franchise claim) and D v T (£1 million-plus claim against a regional transport authority), each settled at mediation. The £15 million-plus defence-contractor and shareholder dispute is recorded in the published case experience of St John's Chambers.
• Clinical negligence and catastrophic injury — published barrister case histories: 12 King's Bench Walk, William Audland KC, recording the claim involving permanent blindness which settled at mediation for more than £4 million; and the Devereux Chambers Personal Injury and Clinical Negligence Settlement Update (Autumn 2023), recording the £3 million mediated settlement involving severe degloving injuries, chronic pain and psychiatric consequences.