Article: Is the Dispute Suitable for Mediation?

Author
Charles Cooper

Date
November 2025

While participants in a dispute are increasingly encouraged to take control of the dispute resolution process by appointing a qualified, regulated and insured Mediator to help facilitate a confidential and without-prejudice discussion between them, it should be acknowledged that not every dispute can be settled through mediation (it is reported that 20% don’t), and not every dispute is suitable in the first place. The recent case of Grijns v. Grijns & Ors [2025] EWHC 2853 (Ch) is a reminder of this.

In Grijns the successful party was said to have been unreasonable in their approach to mediation, but the Court held that: ‘There can be no quarrel with the idea that parties, in litigation, should make reasonable efforts to settle… That, however, does not compel, or require a litigant, confronted by a wholly unreasonable offer, to waste time and cost dealing with such an offer. Such an obligation would simply be wasteful as to time and cost and, if enforced by way of a costs penalty, would run the real risk that parties would feel themselves, for fear of penalty, compelled to settle unfounded litigation’ (at [74]) and ‘I have no doubt at all that it would have been wholly reasonable for the defendants to refuse to mediate’ (at [78]).

Mediation may not be suitable, for example, where: 

• there has been a history of aggression between the participants, be it in the form of domestic abuse, sexual violence, harassment, intimidation or coercion;

• a participant has learning difficulties or mental health problems that affects their capacity or their ability to engage with the process;

• there is reasonable concern that mediation is being offered as a tactical ploy, using the threat of costs sanctions to extract a settlement where the claim is without merit, or to increase costs for the ultimately successful participant (Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576; Grijns v. Grijns);

• mediation, or another form of alternative dispute resolution, has already been tried but failed, particularly where a participant has not negotiated in good faith or has adopted a position of intransigence (Halsey v. Milton Keynes General NHS Trust);

• there are complex legal issues which require a Court to test or set a legal precedent, to test the evidence, or to grant emergency protective orders (Halsey v. Milton Keynes General NHS Trust);

• a participant refuses to provide information or documentation necessary for the process, such as financial disclosure (Grijns v. Grijns);

• there is genuine concern that the offer of mediation, particularly where it is made late in the day, will have the effect of delaying the trial and causing prejudice to a participant (Halsey v. Milton Keynes General NHS Trust).

If considering, or mediation has already been offered, legal advice should be sought as to the relative merits and suitability of the case before offering or responding.

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