In a recent decision, the High Court held that a successful defendant was not unreasonable to refuse mediation and should not be penalised in costs on that basis: ADS Aerospace Limited v EMS Global Tracking Limited [2012] EWHC 2904 (TCC). The judge’s approach was similar to the recent Court of Appeal decision in Swain Mason v Mills & Reeve (a firm) [2012] EWCA Civ 498  (see post) and demonstrates that a refusal to mediate may, in some circumstances, be justified.

The judge cited the lack of prospects of settling the matter at mediation and the proximity to trial as influencing factors. However, the court will not always conclude that a successful party was justified in refusing mediation – see here for example. In all cases a refusal to mediate should be very carefully considered and documented, indicating clear justifications for refusal at that stage. Click here to read more about the case on our ADR blog.