Mediation has long been a key part of modern civil litigation. Courts often encourage, and in some cases, effectively require parties to engage in alternative dispute resolution (ADR) before proceeding to trial.
The message from the judiciary can be summed up simply: parties who unreasonably refuse to mediate could face costs penalties, even if they ultimately win their case.
However, this results in significant pressure on litigants to settle, even in cases against them which they believe to be fundamentally flawed. The fear of costs sanctions can push parties towards unwanted compromises, and it raises a debate over when to encourage settlement and when to abandon meritorious defences.
Fortunately, a recent High Court decision has provided clarity. In Grijns vs Grijns [2025] EWHC 2853 (Ch), the judge confirmed that while the duty to consider mediation remains paramount, courts will not penalise parties who have good reasons for declining.
In this blog post, we take a closer look at what it means and why it is important to those who face meritless claims and unrealistic settlement demands.
The case in question: A family dispute over a £3.85m property
In the final months of 2025, Andrew Grijns brought a claim against his mother and brothers concerning a property in Chelsea valued at approximately £3.85m. Among his numerous proprietary claims, the Claimant argued that he held ownership rights in the property.
However, the court’s judgment was unequivocal and entirely against him. Master Bowles declared that the First Defendant (Andrew’s mother) was the sole legal and beneficial owner of the property. Further still, the Claimant was found to have occupied the property as a trespasser between August 2023 and May 2025, and was ordered to pay mesne profits for that period. All of his claims were dismissed.
During the course of the litigation, the Claimant made four settlement offers to the Defendants, arguing that he should receive a significant share of the property’s value. These ranged from an initial proposal for 55% of the gross sale price down to a final offer of 25% of the net proceeds.
Even under the most conservative of these proposals, Mr Grijns stood to receive in excess of £900,000. However, these offers fell significantly short of the outcome at trial, with the Claimant receiving nothing. In addition, he faced substantial liability for the Defendants’ legal costs.
Following this decision, the Claimant argued that the successful Defendants should be denied a portion of their costs on the grounds that they had unreasonably refused to engage in mediation and settlement discussions.
As Athene Legal’s director, Tyler McEwen explains, it’s not uncommon to see these arguments raised after a comprehensive defeat.
“The court has discretion as to costs, and in deciding what order (if any) to make about costs, the court will have regard to the conduct of all the parties.”
“A losing party will occasionally point to the winner’s conduct around mediation as a way to mitigate their costs exposure. In some cases, there’s genuine merit to the complaint. But in others, like with this case, it’s an attempt to avoid the natural consequences of pursuing and losing an unfounded claim.”
The court’s decision: when ‘no’ is reasonable
Master Bowles rejected the Claimant’s costs arguments comprehensively, and in doing so reiterated several important principles about when declining mediation will not result in cost penalties.
Meritless litigation
The court recognised that Mr Grijns’ litigation had been “unfounded and meritless”. In those circumstances, it was entirely reasonable for the Defendants not to engage in mediation. This principle is straightforward: parties should not have to waste time and costs dealing with claims that lack any proper foundation. Ultimately, the duty to mediate does not extend to negotiating over fundamentally hopeless cases.
Unrealistic offers
The Claimant made four settlement offers, but these fell far short of the actual outcome at trial, where it was found that the Defendants owed the Claimant nothing. Master Bowles declared that the Defendants’ refusal to engage with these offers was entirely reasonable.
According to Master Bowles, “given the merits and given the unrealistic nature of Andrew’s best offer…there was, in reality, no sensible basis for a negotiation.”
Unreasonable conditions
While the Defendants had been willing to mediate, conditions that the Claimant had sought had made it impractical to do so. In particular, the Claimant’s condition that his brothers (the Second to Fourth Defendants in the case) should be excluded from the process was considered by the court to be unreasonable.
A party cannot sue others and then dictate that they be excluded from settlement discussions. Where a party seeks to make mediation unworkable through unreasonable preconditions, the other side is entitled to decline.
Insufficient time
The court also noted that disclosure delays from both parties had left no sensible window for mediation before trial, and that both sides had simply run out of time. Rather than being an unreasonable refusal, it was a practical reality. In some cases, the litigation timetable does not permit mediation, and that’s not a failure on anyone’s part.
“Grijns vs Grijns is a textbook example of how the reasonableness of declining mediation is assessed in context,” Tyler says. “Provided you engage properly with mediation proposals and can demonstrate legitimate reasons for not proceeding, the court will not punish you. The protection this case offers is for those who respond thoughtfully and can justify their position.”
Takeaways for litigants and legal teams
In summary, Grijns vs Grijns offers clear guidance for parties navigating the tension between mediation duties and protecting their position on costs.
For defendants facing weak claims:
You are not required to settle simply to avoid costs penalties. However, proper engagement is essential. It remains important to:
- Respond promptly to mediation proposals
- Explain clearly why mediation is not appropriate at that stage or under those conditions
- Document your reasons carefully
If the matter proceeds to a costs hearing, you will need to demonstrate that your position was reasonable based on the circumstances at the time, not just with the benefit of hindsight.
For all parties:
Never ignore mediation proposals. Silence or hasty responses will compromise any later argument that you acted reasonably. Providing detailed reasons why mediation is premature, impractical or unlikely to be productive is essential.
It’s also important to consider timing, such as whether there’s sufficient time before trial for meaningful negotiations. Furthermore, imposing unreasonable conditions that make mediation unworkable, such as excluding parties from the process, should be avoided.
Above all, it’s vital to keep records of all correspondence and discussions about ADR, as these will be scrutinised if costs are disputed.
For claimants making offers:
Settlement proposals must be realistic and reflect the genuine strength of your case. Using mediation tactically, such as inflating demands in the hope of extracting nuisance value or deliberately refusing mediation as a costs argument, can backfire spectacularly.
As this case demonstrates, wholly unrealistic offers that fall far short of the trial outcome may actually undermine your position, proving that the other side was right to decline engagement.
The broader message
Courts strongly support mediation, as it often resolves disputes proportionately and efficiently. However, that support does not extend to forcing parties to settle claims that lack merit or to engage in mediation processes that are defined by unreasonable preconditions. Reasonableness applies in both directions: parties must be reasonable in considering and responding to ADR, but equally, they are entitled to expect reasonable conduct from the other side.
In Tyler’s view, while it’s important to treat every mediation proposal seriously, you should avoid the fear of cost sanctions from driving your strategy.
“If you have good reasons for not mediating, stand your ground,” he says. “But make sure those reasons are always clearly expressed and recorded. It’s the best way to protect yourself on costs while defending your position properly.”
Navigating mediation duties without compromising your position
Grijns vs Grijns clarifies that while mediation duties exist, they are not absolute when it comes to dealing with unfounded claims. You can decline mediation with good reasons, whether that’s meritless litigation, unrealistic offers, unreasonable conditions or insufficient time, without the risk of facing cost penalties.
But even in these cases, the essential requirement of engaging properly remains the same. By responding substantively, documenting your reasoning and justifying your position, you’ll increase your chances of the court siding with you on costs.
Facing a mediation proposal or concerned about costs penalties? Athene Legal’s specialist cost lawyers are here to help. Our team has extensive experience in costs assessments and can advise on your obligations and protect your position. Get in touch with us today by filling out our contact form and arranging a consultation at one of our offices in London, Birmingham or Southampton.
