Select Page


A survey by E&Y of 100 companies in the FTSE350 (highlighted by Litigation Future and the Law Society Gazette etc) has found that UK businesses were more likely to use ADR during Coronavirus – as we predicted. They also predict that after the end of the pandemic (assuming there is one!) we will go back to more litigation. I do not agree with this analysis as surely businesses which have used mediation successfully to get good results are likely to continue to use it?

This is in line with Cabinet Office guidance issued in May 2020, which called on businesses to avoid litigation.

  • 63% reported adopting a conciliatory approach to business disputes since the start of the pandemic.
  • 59% now expect claims to be higher than normal in 2021, with 14% fearing that extra litigation could affect their ability to continue trading.
  • Three-quarters of companies surveyed turned to alternative dispute resolution to resolve an issue during the pandemic.
  • 81% of the companies surveyed said they had applied reliefs to contract terms since the pandemic’s onset, with 69% granting or receiving time extensions, 59% renegotiating other contract terms, and 25% granting or receiving payments for additional costs.
  • 32% said that, during the pandemic, they had deferred or stopped investigations which they would have pursued beforehand.
  • 47% have raised or expect to raise a claim as a result of Covid-19.
  • 31% have either received a claim or are expecting to.

We have certainly seen a huge increase in businesses using ADR during the pandemic. Why?

Put simply because businesses need to concentrate on getting through and mediation is a much quicker and cost effective route than litigating when the Courts have been dealing with a backlog of cases or in the case of landlord and tenant or insolvency cases, been inaccessible owing to coronavirus legislation. Businesses have also found that remote mediation by Zoom is highly effective and efficient, producing good results.

We have also been offering a free trial of our consumer to business mediation service (ADR Roadshow) and this has been met with enthusiasm from those businesses who have taken part.

E&Y say that in their view the pandemic situation has “contributed to a short term move away from companies embarking on litigation.”

I would question whether the change is in fact short term as suggested or may be a cultural paradigm shift alongside more home working. Business are likely to find the mediation experience beneficial and in my view there is no reason why mediation should not retain its place following the world returning to “normal.” What business, having discovered the benefits of mediation will turn back the clock to “no holds barred” costly litigation? Answer: very few.

Even according to E&Y “It also seems that those that have used ADR have seen the benefits of doing so and may be more likely to use this option in future.”

48% of respondents said that a “continued desire to take a more conciliatory approach to counterparties” would influence their decision on whether or not to pursue a claim in the next year. So although litigation may increase I would say that resources have diminished and many businesses will fear insolvency, so there is a higher risk in litigating.

47% of respondents raised or anticipate raising a claim as a result of COVID-19, while 31% anticipate receiving or have received a claim. In my view they are now likely to try to mediate those claims.

At ProMediate we have a panel of highly experienced mediators who are available to mediate, at short notice if required. Please get in touch if you want to instruct a mediator.