NCDR or “No Chance of Dispute Resolution”? Lessons from MJS Projects (March) Ltd v RPS Consulting Services Ltd

There’s a quiet linguistic makeover underway in litigation circles. ADR (Alternative Dispute Resolution) is being nudged aside in favour of NCDR (Non-Court Dispute Resolution)—a rebrand that tries to make settling outside court sound less like a quirky alternative and more like the default setting.

But if NCDR is meant to be the future, this recent TCC decision suggests the present is still… negotiable.

Or perhaps: non-court, but not by force.

Cracks in the case (and the concrete)

The dispute itself had all the hallmarks of a construction classic: allegations of negligent design versus counter-allegations of poor workmanship. The claimant said the structure failed because of bad engineering; the defendant said it failed because of bad building.

At trial, the claimant’s case didn’t just fail—it fractured. The court preferred the defendant’s evidence and was unimpressed by the claimant’s expert approach.

So far, so structurally predictable.

But like any good construction dispute, the real weight came at the end—costs.

The mediation that never quite built

Having lost, the claimant reached for a familiar argument: “You may have won, but you refused to mediate—so you shouldn’t get your costs.”

Enter NCDR, stage left.

The defendant had declined mediation earlier in the dispute. But crucially, this wasn’t a blanket “no.” It was more of a “not yet—and not like that.”

Why? Because:

• The claimant hadn’t properly engaged with key technical issues, especially expert evidence;

• The mediation proposal came late and on restrictive terms (including trying to control the mediator); and

• The parties were, frankly, miles apart, not necessarily a reason not to proceed (recently I got clients from close to 200k apart to a settlement at under 30k).

The court agreed: mediation under those conditions had no real prospect of success. I disagree but I'm not the judge

So the refusal to mediate wasn’t deemed unreasonable—the court felt it was well-founded.

NCDR: now compulsory? Not quite.

If ADR was the “alternative,” NCDR is supposed to be the norm. But this case is a useful reminder that “non-court” does not mean “must settle.”

The judge reaffirmed something quietly important:

• Mediation is just one form of dispute resolution;

• Refusing it is not automatically sanctionable;

• And context—especially the merits and the conduct of the parties—is everything.

So while courts are clearly keen on NCDR, they are not (yet) turning it into FCDR—Forced Compromise Dispute Resolution.

When NCDR becomes NCR: No Chance of Resolution

There’s a deeper irony here.

The claimant’s late push for mediation looked less like a genuine attempt to resolve the dispute and more like a strategic retrofit—trying to bolt on settlement after the structure had already failed inspection.

But here there were felt to be difficulties with NCDR because:

• parties needed to share enough information,

• experts were no where near aligned (or intelligible), and

• there’s was no realistic middle ground.

Without those, the court felt mediation wasn't possible, again I disagree, the court misses the point of mediation, often it's not a perfect case that presents at mediation it's a case of avoiding court and the increased costs of preparing for a full trial inevitably means expert evidence is ready yet (or agreed).

Costs: still following the (well-built) event

Sadly, the court stuck with orthodoxy:

• Costs followed the event;

• The successful defendant recovered its costs (with a substantial payment on account).

No penalty. No discount. No mediation guilt tax.

Final thought: you can’t mediate on shaky foundations

The rebranding from ADR to NCDR suggests a legal culture shift—away from court, toward resolution.

But this case shows the limits of that shift.

You can encourage parties to leave the courtroom. You can incentivise settlement. You can even rename the process.

But you cannot make a bad case settle well.

Or, to put it in suitably TCC terms:

NCDR may be the blueprint—but if the underlying case is structurally unsound, no amount of mediation will stop it collapsing.

And when that happens, the court is still very much open for business