Edward Nyman considers recent themes emerging in cases where parties turn down mediation
- Parties should carefully consider any offer to mediate, particularly where there is potential to reduce time and costs.
- Churchill strengthened judicial encouragement for parties to engage in ADR while Halsey principles still determine whether refusal is unreasonable.
- Costs sanctions remain exceptional and fact‑sensitive; the losing party has the burden to show unreasonableness.
- In recent case law, courts have found refusal reasonable where the claim was unfounded and where mediation would have been unsuccessful.
It is well established that parties are expected to engage seriously with alternative dispute resolution (ADR) at sensible points in the litigation timetable. The advantages of ADR in terms of both time and costs are well known, although not all cases are suitable.
Recent case law has considered whether a party’s refusal to participate is unreasonable so as to attract adverse costs consequences. Refusal is not automatically unreasonable; rather, the court will assess the claim’s merits, proportionality, timing and the parties’ conduct, looking closely at whether participation in ADR would meaningfully advance
