header-logo header-logo

27 March 2026 / Edward Nyman
Issue: 8155 / Categories: Features , Mediation , ADR
printer mail-detail

Refusing to engage?

245630
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

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Clarke Willmott—Matthew Roach

Clarke Willmott—Matthew Roach

Partner joins commercial property team in Taunton office

Farrer & Co—Richard Lane

Farrer & Co—Richard Lane

Londstanding London firm appoints new senior partner

Bird & Bird—Sue McLean

Bird & Bird—Sue McLean

Commercial team in London welcomes technology specialist as partner

NEWS
What safeguards apply when trust corporations are appointed as deputy by the Court of Protection? 
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?
When it comes to free legal advice, demand massively outweighs supply. 'Millions of people are excluded from access to justice as they don’t have anywhere to turn for free advice—or don’t know that they can ask for help,' Bhavini Bhatt, development director at the Access to Justice Foundation, writes in this week's NLJ
When an ex-couple is deciding who gets what in the divorce or civil partnership dissolution, when is it appropriate for a third party to intervene? David Burrows, NLJ columnist and solicitor advocate, considers this thorny issue in this week’s NLJ
NLJ's latest Charities Appeals Supplement has been published in this week’s issue
back-to-top-scroll