It is often said that a failure to mediate will lead to a costs sanction and that a refusal to respond to a request to mediate is automatically unreasonable based upon what Arnold LJ said in Northamber Plc v Genee World Ltd [2024] EWCA Civ 428. But is this right? The recent decision of HHJ Michael Berkley (sitting as a High Court Judge) in Ellis v Ellis (Re Care deceased) [2025] EWHC 2609 (Ch) provides a helpful perspective on this subject. The judgment on costs runs to 151 paragraphs and I will not attempt to summarise the background facts or the issues. I suggest the following headline points can be stated, neither of which is new:
- An unreasonable refusal to participate in mediation may result in a costs sanction: Halsey [2004] EWCA Civ 576.
- Silence in the face of an invitation to mediate is as a general rule unreasonable: per Arnold LJ in PGF II SA v OMFS 1 Ltd.
As the judge found in Ellis, it is too simplistic and not in accordance with these principles to say that a failure to answer every and any invitation to mediate is automatically unreasonable. Arnold LJ described ‘silence = unreasonable’ as a ‘general rule’. There will always be exceptions to a general rule and the court will want to look at how the correspondence developed. No doubt a persistent failure to address the subject will leave the silent party vulnerable to a sanction.
It is rarely if ever going to be reasonable to refuse to mediate because of the perception that the party refusing has a strong case. On the other hand, the timing of mediation is a nuanced decision. More information may help, but if mediation is left too long costs become an increased issue. It is not be easy to strike the right balance. It is helpful to note that in Ellis the judge concluded a delay in agreeing to mediation for a period of about 6 months could not be characterised as being unreasonable.
There can be good reasons for responding to a request to mediate agreeing in principle but saying ‘not now’. The decision does not break new ground but illustrates the need for not oversimplifying the positioning that goes on between parties about mediation.
Silence in the face of an offer to mediate (even if there are doubts about whether it is genuine) is unwise; on the other hand to delay until what is thought to be the optimum time will not usually be unreasonable.
If you have any queries about mediation, please get in touch.