Can I Refuse Mediation

Can I refuse mediation? You can put your foot down and refuse mediation, but do not think for a moment that it comes without potential serious consequences. In the UK at least, the answer is very much one of context.

Refusing Commercial Mediation

Historically the courts would strongly encourage you to use alternative dispute resolution but would not force you to. This was portrayed in the classic Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 where the Court of Appeal held that while they could not make you mediate, unreasonably refusing to meant you could be penalised on costs even if you won at trial.

The law has in recent times shown a greater inclination towards ADR. The Court of Appeal was quite explicit on the matter in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416: it is open to them to put a stay on proceedings and oblige the parties to have recourse to non-court avenues, as long as this does not get in the way of a fair trial.

It does not render every refusal with a dim view, but it shows the courts are more than willing to insist you take ADR seriously.

So practically speaking? Yes you can refuse, but you may end up paying for it in terms of procedure, strategy or money. Here the risks are greater. The courts have established a firm line of authority on cost sanctions for those who refuse.

Consequences Of Refusing

An example of this from my own mediation practice was a claimant contacted me back in March 2025. I sent him a mediation quote, which he accepted.  Very early on in the claim. They were a concrete supplier and were in dispute with a housing developer to the tune of £450,000. The claimant wanted to mediate and forwarded my quote to the defendant.

Who said, and I quote “mediation will be a waste of time our case is watertight and they would rather let the judge decide, which they believed would be in their favour.”

This of course was a very risky stance to take. As if the court came to view that refusal was unreasonable down the line, the defendant would be looking at some unpalatable outcomes:

• A loss of costs regardless of winning at trial.
• An order to foot part of the bill for the other side.
• Some stinging judicial criticism in the judgment.
• Case management issues if the court put proceedings on hold for ADR.

The Case Law Governing A Valid Reason To Refuse  

The case law on commercial mediation is clear enough on this front. Take Dunnett v Railtrack plc [2002] EWCA Civ 303, for instance; that is your early word from the Court of Appeal on the cost implications of a refusal.

Or Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, which is the go to authority for when a refusal is deemed unreasonable. The court will be examining the merits, any delay, the expense and so forth.

Nigel Witham Ltd v Smith (No 2) [2008] EWHC 12 (TCC) makes plain that you can face costs consequences for being slow to agree to mediate. And more to the point, Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 has put the power of the court to stay proceedings for ADR where it is proportionate back in focus.

Should The Defendant Have Refused To Mediate?

As I had mediated previously for both of the different law firms representing the claimant and defendant I told them to let me know what the final outcome was.

In our case the defendant had what you might call a very strong hand, but their refusal to mediate led the Judge to rule them unreasonable. They pointed to P4 Ltd v Unite Integrated Solutions plc [2006] EWHC 2924 (TCC) and were quick to dismiss any talk of an incomplete pre-action process or lack of detail as valid objections.

The court’s view was that mediation could have at the very least narrowed the issues between the parties. Put simply, they should have taken the opportunity to mediate when it was offered which would have protected them on costs, and possibly led to a partial settlement. The defendant was heavily penalised on costs.

A party may decline to mediate, but if the refusal is deemed unreasonable it can bring about some stiff costs penalties, even should you come out on top at trial. The rule of thumb is simple: you are entitled to say no, but you ought to have a defensible reason for it.

You may have valid grounds if you need an urgent injunction for precedent’s sake or the other party is acting in bad faith for the publicity or to cause delay. But do not come at me with “my case is obviously strong” or “I want my day in court” or that you are too angry to have a conversation. Those are weak arguments and will be treated as such.

Refusing Workplace Mediation

Take a workplace dispute, while mediation is for the most part voluntary, saying no can have an impact on how a tribunal or court perceives the parties’ conduct, as well as on internal grievances, resignation claims or disciplinary matters.

ACAS will tell you that mediation is not compulsory in the UK. An employer will usually present workplace mediation as a way to put right a relationship breakdown or settle a bullying claim between colleagues before things get worse. ACAS recommends it for that very purpose.

But some employment lawyers will point out that if an employer issues a reasonable management instruction for a facilitated meeting, especially to a senior employee, turning it down could be viewed as misconduct. Or it might be used against you in a constructive dismissal case if you look like you had no intention of resolving anything.

Workplace Mediation Example

Consider a manager and an employee who have been at odds for months. The employee puts in an allegation of undermining and the employer suggests mediation ahead of a formal grievance. The employee is having none of it: “I am right and they should be disciplined. I am not sitting in a room with them.”

If that is born out of principle or anger, the employer may go ahead with the formal process and the refusal will be seen as a lack of cooperation.

Do not be under the impression that ignoring an offer is off the table either. In some quarters it can be a disciplinary matter. That said, if you can show there is a risk of harassment or trauma in being face to face with the other side, your refusal will be viewed as justified. There are employment law considerations too; an employer who is unreasonable in not trying to restore trust and confidence is opening the door to a constructive dismissal claim, and to ignore a mediation clause in your contract is a breach.

Where there is a major power imbalance or safeguarding issue, mediation is often off the table anyway.

So when is a refusal defensible? You need something on the evidence. Perhaps there are safeguarding or intimidation issues, as can happen in workplace matters, or a mental health concern that makes sitting across from the other side inadvisable. Maybe there is a power imbalance you cannot manage, or the claim is so small the cost of mediation is out of all proportion.

Or if you have been around the block with them before and there is no movement to be had.

Conclusion

Can I refuse mediation? The bottom line is you can refuse, but do not be casual about it. In a commercial context the courts expect you to engage with ADR and will impose cost sanctions if you do not. For a workplace dispute, a refusal can colour the whole narrative on fairness and trust.