Disputing parties are expected to take part in alternative dispute resolution (ADR), where this is suitable for their case. At what point, however, does refusing to participate cross the threshold of ‘unreasonable’ and attract adverse costs consequences?
In this week’s NLJ, Edward Nyman, senior associate at Hausfeld, explores recent case law on this topic.
In considering whether refusal is unreasonable, ‘the court will assess the claim’s merits, proportionality, timing and the parties’ conduct, looking closely at whether participation in ADR would meaningfully advance a resolution or simply add cost and delay,’ the author writes.
Nyman, who is a committee member of the Junior London Solicitors Litigation Association, explores how the court’s approach has evolved and the current state of play. He writes: ‘In a post‑Churchill landscape, the court will actively encourage ADR and sometimes order it, yet costs sanctions for refusing to mediate remain exceptional.’
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