One of the most common questions people ask about mediation is what happens if the other side simply refuses to engage. It is a fair concern. Mediation is voluntary, and you cannot compel someone to sit down at the table. But the legal landscape has shifted significantly since late 2023, and the picture is now considerably more favourable to parties who propose mediation in good faith.
The old position: Halsey and its limits
For nearly two decades, the starting point was Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, in which the Court of Appeal held that compelling unwilling parties to mediate would be “an unacceptable obstruction on their right of access to the court.” Halsey did not prevent courts from encouraging or even pressuring parties to mediate, but it was widely read as ruling out any power to order it.
Halsey also identified a framework of factors relevant to whether a refusal to mediate was unreasonable — including the nature of the dispute, the merits of the case, whether other settlement methods had been attempted, the cost of ADR relative to the claim, and the prospects of mediation succeeding. These factors continue to be applied.
The turning point: Churchill v Merthyr Tydfil [2023]
The leading authority is now Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, a Court of Appeal decision handed down on 29 November 2023. The case arose from a nuisance claim involving Japanese knotweed encroaching from Council land. The Council sought a stay for the parties to attempt ADR; the first instance judge refused, considering himself bound by Halsey.
The Court of Appeal — comprising Lady Carr LCJ, Sir Geoffrey Vos MR and Birss LJ — held that the relevant passage in Halsey was obiter and did not bind lower courts. The court confirmed that it has power to stay proceedings for, or order, parties to engage in ADR, provided that doing so does not impair the essence of the claimant’s Article 6 rights and is proportionate to a legitimate aim.
Churchill did not make mediation compulsory, but it reversed the long-held belief that the court had no power to order it. The decision prompted amendments to the Civil Procedure Rules — in force from October 2024 — adding the promotion and use of ADR to the overriding objective.
Silence is not a safe response: Northamber and PGF II
A party who simply ignores an offer to mediate is in a particularly exposed position. In PGF II SA v OMFS 1 Ltd [2013] EWCA Civ 1288, the Court of Appeal held that silence in the face of a mediation invitation should generally be treated as unreasonable in itself, even if a refusal might otherwise have been justified.
That principle was applied and reinforced in Northamber Plc v Genee World Ltd [2024] EWCA Civ 428, now the leading post-Churchill authority on costs consequences. The Court of Appeal held that the trial judge had erred in failing to treat the defendants’ silence as unreasonable conduct. The court increased the costs penalty by an additional 5% — described as “modest, but not insignificant” — and made clear that there is no obligation on the party making the offer to chase for a response. Once an invitation is made, the ball is firmly in the recipient’s court.
Northamber is also notable because one of the defendant’s failures was a breach of a previous order requiring any party refusing ADR to serve a witness statement explaining their reasons. Courts are increasingly making such orders as a matter of course.
The first order compelling mediation: DKH Retail
In DKH Retail Ltd & Ors v City Football Group Ltd [2024] EWHC 3231 (Ch), Mr Justice Miles went further still — ordering the parties to mediation despite the defendant’s objections. Described as the first reported “Churchill Order”, the case confirms that the court’s post-Churchill power is not merely theoretical. A defendant who refuses mediation now faces not only a potential costs penalty but the prospect of being directed to participate by the court.
What about Grijns?
Not every court has fully engaged with the post-Churchill landscape. In Grijns v Grijns [2025] EWHC 2853 (Ch), Master Bowles declined to impose a costs sanction for refusal to mediate. The decision has attracted criticism from commentators — including senior figures at CEDR — on the basis that it relied entirely on pre-Churchill authorities, none of which post-dated 2020, and did not engage with the amended CPR at all.
Grijns serves as a reminder that sanctions are not automatic, and that courts retain a broad discretion. But its longevity as good law is open to question. The direction of travel in the post-Churchill case law is clear.
The practical position today
The current framework, as it stands in 2025, can be summarised as follows:
Courts have power to compel mediation. Since Churchill, there is no longer any doubt about this. The amended CPR reinforces it.
Silence is risky. Under PGF II and Northamber, failing to respond to a mediation offer is likely to be treated as unreasonable in itself, regardless of whether a reasoned refusal might have been justified.
Costs sanctions are real. An unreasonable refusal can result in a costs penalty even for a winning party. In more egregious cases, indemnity costs remain possible — as DSN v Blackpool Football Club [2020] EWHC 670 (QB) confirms.
How you refuse matters. Under Gore v Naheed [2017] EWCA Civ 369, an unreasonable refusal does not automatically attract a sanction — it is one factor in the round. But a party who responds promptly, gives clear reasons, and engages in good faith with the question of ADR is in a much stronger position than one who simply ignores the offer.
How to raise mediation constructively
The way you propose mediation matters. A letter that reads as tactical, or that arrives so late that it looks like a delay tactic, is less likely to be received well than a genuine and timely invitation.
The most effective approach is to raise mediation early, in straightforward terms. Acknowledge that direct correspondence has not resolved the dispute. Suggest a mediator, or offer to agree one jointly. Offer to share the cost. Ask for a response within a reasonable time. If the other side refuses, ask for their reasons in writing — those reasons may matter later.
If an initial refusal is not the end of the matter, keep the invitation open. Many parties who initially decline agree in due course, particularly when their solicitors advise them of the risks of an unreasonable position.
A practical note
If you are considering raising mediation with the other side and want to discuss how to do so, I am happy to help. Part of my role is advising on when and how to introduce mediation, and how to frame it in a way that is constructive and difficult to refuse. An initial conversation is free and without obligation.