What is ADR?

Alternative Dispute Resolution (ADR) refers to ways to settle legal arguments before a judge makes a final decision on a case. ADR includes mediation, making written settlement offers, or arbitration, and it can take place before proceedings have been issued or after they have been issued at court, but before a judge makes a final order. ADR is usually faster, cheaper, and less formal than traditional court proceedings.

The Practice Direction on Pre-action Conduct and Protocols came into force on 6th April 2025 and states that “Litigation should be a last resort” and that the parties should try to negotiate or settle matters to avoid the need for court proceedings to be issued. Where proceedings have been issued, the court continues to encourage the parties to mediate, preventing the need for a trial, which is costly and can be stressful for everyone involved.

Courts may require evidence that ADR was considered, and a failure or refusal to participate can lead to adverse cost orders against the non-engaging party.

The Risks of Not Mediating

Judges can order a party to pay the other side’s legal fees if they refuse to try mediation or ignore an invitation to do so. In leading cases like Halsey v Milton Keynes General NHS Trust (2004) and PGF II SA v OMFS Company Limited (2013), the judiciary provided clear factors for determining whether a refusal to mediate is unreasonable:

• The nature of the dispute
• The merits of the case
• The extent to which other settlement methods have been attempted
• Whether the costs of ADR would be disproportionately high
• Whether the delay in setting up ADR would be prejudicial
• Whether ADR had any reasonable prospect of success

If a party unreasonably refuses or simply ignores an invitation to mediate, courts may order them to pay additional costs. The message is clear: litigation should be a last resort, and parties must engage seriously with ADR opportunities.

When Refusal to Mediate Is Reasonable

Even though courts encourage ADR, they recognise that there are circumstances where refusing to mediate is justified. The key is context and reasonableness. The decision in Grijns v Grijns & Ors [2025] EWHC 2853 (Ch) provides a practical example.

Case Background:

The dispute centred around a Chelsea property worth £3.85 million. Andrew Grijns claimed that he had a significant interest in the property based on alleged promises from his parents, while his mother, Janice, denied these promises and counterclaimed for possession and compensation for Andrew’s unauthorised occupation. At trial, Andrew’s claims were dismissed, Janice was declared the sole owner, and Andrew was found to be a trespasser since August 2023. The Judge also criticised Andrew, describing him as self-absorbed.

Because they won, Janice and Andrew’s brothers asked the court for an order that Andrew pay all their legal costs, saying his case was weak and he acted badly during the litigation. Andrew argued he shouldn’t have to pay because the others didn’t mediate or respond to his settlement offers.

But Andrew was wrong about the other side never trying to settle:

• Janice’s lawyers suggested mediation in August 2023.
• Andrew refused mediation if his brothers were there, even though they were parties to the case.
• Both sides delayed sharing important documents, making it hard to set up mediation.
• Andrew made four offers, all requesting a large part of the house. Janice rejected them and made a counteroffer in November 2024.
• The court told everyone to consider ADR, but didn’t order that it should take place.
• Even after offers were made, no mediation took place.

Why the Court Held the Refusal Was Reasonable

The judge found that Janice and her sons never actually refused mediation; in fact, they suggested it first. Andrew blocked it by insisting that his brothers couldn’t attend, which was unreasonable. Also, delays in sharing evidence made mediation unrealistic before the trial.

The judge went on to conclude that it would have been wholly reasonable for the defendants to refuse mediation, especially given the claim’s weak merits. The case law in this area of law recognises that where a claim is unfounded, and parties wish to contest it rather than “buy off” the claimant, refusal to mediate is not unreasonable.

The defendants’ failure to engage with Andrew’s unrealistic settlement offers was also considered to be reasonable. The court rejected the idea that a successful party must treat inflated offers as a starting point for negotiation, noting that this would encourage unfair settlements and waste time.

Key Takeaways

• Courts want people to try ADR before and during court proceedings, but each case is different. It’s not always unreasonable to say no to mediation, especially if the case has no real basis.
• Ignoring mediation requests matters from a cost point of view, but it’s not the only factor. Judges consider all the facts and both sides’ behaviour.
• Settlement offers need to be realistic. It’s ok to refuse unrealistic offers.
• Keep records of ADR decisions. Always note attempts to mediate or settle and be open to ADR when it makes sense. If you refuse, make sure you have a good reason!

Judges consider the strengths and weaknesses of the case, whether both sides tried to settle, and if the offers were fair. You don’t have to accept unreasonable offers or conditions, but you should show that you were always open to ADR. If you say ‘no’ to mediation, be prepared to justify that decision at a later date when costs are being considered.

Rebecca Kershaw, Apprentice Solicitor