When Refusing Mediation Is Reasonable

The pro-mediation direction in civil justice is no longer in doubt. Courts expect parties to consider and engage with alternative dispute resolution (mediation to be specific) as a matter of course, and failures to do so routinely attract adverse costs or procedural consequences. Against that backdrop, early February commentary on Grijns v Grijns [2025] EWHC 2853 (Ch) has been notable not because it weakens this trend, but because it clarifies its limits. The Grijns case does not dilute the duty to engage with mediation. It explains when resistance to mediation may be reasonable.

The case arose from a family property dispute in which the High Court found the claimant’s case to be exceptionally weak. Alleged assurances were described as constructed and inconsistent with contemporaneous documents and conduct. The litigation was characterized as a vehicle for extracting a settlement rather than resolving a genuine dispute. The defendants succeeded at trial and were awarded costs on the indemnity basis, reflecting the court’s view that the claim crossed the line into abuse.

The claimant nevertheless argued that the defendants should suffer a costs penalty because of their stance on mediation, contending that there should be no order as to costs or a substantial reduction. That submission was firmly rejected. The court found nothing unreasonable in the defendants’ approach to ADR given the lack of merit in the claim and the claimant’s unrealistic settlement expectations, which included demands approaching £900,000 on a claim that ultimately failed in its entirety.

Doctrinally, Grijns sits within the familiar Halsey and PGF framework. The court reaffirmed that silence or failure to respond to a serious mediation invitation is normally unreasonable and may justify a costs sanction. It also reaffirmed that unreasonable refusal to mediate remains a live and significant risk. What the decision adds, drawing on the Jackson ADR Handbook (4th ed., 2025), is a sharper articulation of an established but sometimes under explained exception, i.e., where a claim is clearly unfounded or abusive, resistance to mediation may be reasonable.

Crucially, this was not a case of blanket refusal. The defendants had suggested mediation and attempted settlement. Those efforts broke down because the claimant imposed artificial and unrealistic conditions, including the exclusion of necessary parties from the process. In that context, the court treated the defendants’ stance not as obstruction but as genuine engagement with ADR that had reached a rational limit.

For litigators, the lesson is not that mediation may be safely declined whenever a claim appears weak. Courts will scrutinize such assertions closely. Resistance must be grounded in evidence, such as, inconsistencies in the pleadings, contradictions with contemporaneous documents, and settlement positions untethered from any plausible merits outcome. Just as importantly, ADR correspondence has become costs critical. Parties are expected to respond promptly and substantively to mediation invitations and to explain, in measured terms, why mediation would be unproductive in the circumstances. Silence, formulaic refusals, or overconfident merits assertions remain high risk.

The safe harbor identified in Grijns is therefore narrow. It does not protect parties who overestimate their position at an early stage, who deploy “weak claim” rhetoric tactically, or who treat mediation as optional in ordinary disputes. The presumption in favor of ADR remains strong, and courts will continue to penalize strategic non-engagement.

For mediators, Grijns should be read as a boundary case rather than a retreat from mediation. It underscores the importance of process integrity. Where a mediation is being used primarily as a tool of coercion through extreme settlement demands or artificial procedural constraints, robust reality testing and careful intake assessment are not only appropriate but necessary. Equally important is transparency around why a mediation fails. Where breakdown results from excluded parties, unrealistic conditions, or leverage driven positioning, clear and neutral communication of those dynamics protects both the mediator and the process, and may later prove decisive in judicial costs analysis.

Although Grijns is a UK costs decision, its reasoning travels across common law jurisdictions. Whether framed as costs discretion, case management sanctions, or good faith participation requirements in court connected mediation schemes, the underlying question is the same. Was the party’s approach to ADR reasonable in context? On that question, Grijns offers clarification rather than exception.

The decision therefore draws an important but careful line. Mediation remains the norm. Courts do not require ritualistic participation divorced from reality, nor do they expect defendants to buy off plainly abusive claims simply to avoid costs risk. At the same time, they remain intolerant of silence, tactical disengagement, or casual refusal.

The enduring message of Grijns v Grijns is that ADR obligations are about reasonableness, not compliance for its own sake. For litigators, that means disciplined merits assessment and treating ADR correspondence as substantive advocacy. For mediators, it means recognizing when a case sits at the outer edge of appropriate mediation use and managing that edge with care.