New Cases on Mediation in 2025

2025 has not thrown up much earth-shaking precedent in relation to mediation. There have been no incursions by judges into the confidentiality of the mediation process. Judges have not enquired why a mediation did not produce settlement. No mediator has given evidence or been ordered to do so. No doubts have been cast on the binding nature of mediated settlements. So the process itself has remained secure. Arguably, too, the small number of contentious cases about mediation in 2025 suggests that mediation is simply taking place without controversy. It has been argued that the main consequence of Churchill in authorising courts to order mediation is that it would simply be undertaken without recourse to court direction, which would involve risks of adverse costs orders if one party was found to have acted unreasonably. We may have to await the next CEDR Audit before discovering whether Churchill has generated a marked uplift in mediation cases overall.

2024 ended with the dramatic and (to mediators) welcome decision in DKW Retail v City Football[1], in which Miles J ordered unwilling parties to mediate shortly before trial under the newly conferred power to do so in CPR 3[2], following the Churchill appeal a year earlier. The last paragraph of Miles J’s judgment triumphantly reads:

44. Postscript: on 13 January 2025 the parties notified the court that they had settled their dispute.

Will this decision set a trend for CCMCs and pre-trial reviews, the main procedural occasions when orders for mediation might be contemplated?

In the case summaries below, new 2025 case names are in bold. Claimants and defendants are abbreviated to C and D or DD.

1 . Failure to mediate and costs sanctions

The majority of 2025 decisions relevant to mediation dealt with whether to sanction unreasonable failure to mediate. For reasons set out below, this may become a decreasingly frequent subject for litigation, but there were several such cases in 2025. 

What is striking about such decisions in 2025 is the absence of reference to Churchill and the amended CPR. Two cases – Assensus v Wirsol Energy[3] and Grijns v Grijns [4]¸ both of which dealt with whether a costs sanction should be imposed (or not) for unreasonable refusal to mediate, managed to ignore Churchill completely. In neither case were precedents later than 2000 cited. Some reliance in both was placed on Gore v Naheed[5], a much-criticised decision, the force of which must now have been overtaken by the amended overriding objective. No reference is made in those judgments to later decisions such as 

Thakkar v Patel[6], TMO Renewables v McBraida[7] and Northamber v Genee World[8] which reinforced the propriety of sanction failure to mediate. Reasons were found in both Assensus and Grijns for not imposing a sanction. Judges can normally only decide cases on the basis of what is submitted to them. In both Assensus and Grijns, it would appear that the authorities laid before the court were out of date. Nor did either judge send any warning signal that the future might look different. Surely any litigant who genuinely wants to engage in mediation which is refused must now apply to the court for an order. Waiting for the end of a trial which that litigant loses, and then hoping to escape some of the normal costs consequences of losing by criticising the winner’s historic refusal to mediate is likely to receive short shrift.

Indeed several other 2025 cases were about whether a costs sanction for failing to mediate was justified. In Ellis v Ellis & Care[9] , a probate dispute, C won but D argued against an adverse costs order because C had refused to mediate. It was held that D had withheld important information at the stage of proposing mediation which excused the refusal at that stage. A mediation had been convened six months after the first refusal but had not generated settlement. The judge said that penalising a failure to respond was a “general rule” and not a reason for automatic sanction.

In Chassy v Left Shift and ors[10], C won against D1 but not against D2 and D3 (directors of D1) . The judge ordered that D1 should pay 75% of C’s costs as a whole. C alleged that DD had all refused to mediate. D1 had pointed out that C might not recover against all three DD and it was suggested that mediation might not have succeeded because of the gap. The judge declined to reduce any further the 75% costs order against C.

In Cygnet v Care Quality Commission[11], C, a healthcare provider inspected by D, successfully criticised D over conflict of interest by its inspector. An issue-based costs order (10% reduction to C’s costs) was made but no adjustment made for D’s failure to mediate, although the judge described this as “unfortunate”.

Sanctions for failure to mediate were not imposed in Belson v Belson[12] and in Gable Insurance v Dewsall[13].

An interesting and unusual instance of refusing to sanction failure to mediate occurred in Alrubie v Chelsea FC and Granovskaya[14].   A sought commissions as a football agent from G who was then a Chelsea director. G argued that the dispute was covered by FA arbitration rules. The court agreed, but A resisted a full costs order partly on the basis that G had refused to mediate. Dealing with that issue, the judge said

Ms Granovskaia is clearly the successful party, both on the application and in the proceedings, which are now stayed. ….I am not persuaded that any of those points justify depriving Ms Granowskaia of any costs. 

….I have in mind that under CPR 1.1(2)(f) the overriding objective of dealing with a case justly and at proportionate cost includes, so far as is practicable, "promoting or using alternative dispute resolution". However, Ms Granovskaia has a contractual right under the FA Rules not to be subjected to proceedings in court. I do not think that it was unreasonable for her to decline to engage in a mediation about the substance of the claim pending the court's confirmation and enforcement of that right by the grant of a stay.

This is the only case in 2025 in which a judge actually cites the amended overriding objective in relation to “promoting or using “ADR” in a judgment, even if on this occasion, for a coherent reason, it was not applied.

A sanction was however imposed in Fernandez v Fernandez[15], where an unreasonable refusal to mediate by the losing party C justified an indemnity costs order against C.

2. Ordering mediation

The reported cases in 2025 show some willingness among judges to order parties to mediate. In Ivey v Lythgoe and others[16], a dispute over wills, the claimant C decided also to sue a will writer R in negligence. A mediation date was agreed between the administrators and beneficiaries. But C wanted to get R involved in the mediation and applied for R to be joined as a party for that purpose, The judge decided to consolidate the will and negligence claims, ordered C to serve particulars of claim quickly on R and made an order staying the consolidated proceedings, and ordered R to participate in the mediation (actually citing Churchill) despite the short time-scale for R’s involvement.

In Brooke Homes v Portfolio Property Partners[17], a company insolvency dispute, the judge ended his directions judgment as follows, expressing concern about the dissipation of assets in legal costs:

I should also conclude by noting here that I raised with the parties during the course of the hearing whether or not they had engaged in any ADR or mediation on the applications before me. They confirmed they had not. I consider this is unfortunate as it appeared to me there were a number of matters which would have benefited from further dialogue between the parties, and if such dialogue had occurred this would or should have resulted in resolution of the issue or a narrowing of the issues before the hearing. Resolution or a narrowing occurred on many points during the course of the hearing. I would be inclined to order some form of mandatory mediation between the parties to assist them in resolving any remaining disputes, should a voluntary one not now take place, as there are still a number of points between them, and to be worked through, on the account.

In Sky v Riverstone et al[18], a Commercial Court NDR order was built into directions.

But judges quite often simply recommended mediation rather than ordering it, despite their powers to do so. In Rogers v Wills[19], a claim in contract and unjust enrichment against a mother’s estate, the judge said:

The second stage of this litigation will deal with the ascertainment of such quantum. However, this is a case which cries out for mediation rather than litigation. It ought to be possible for the parties, in the hands of an experienced mediator, to reach agreement on what is the appropriate amount to represent the liability of Sheila's estate towards the claimant. In that way, further costly and emotionally wearing court hearings will be avoided.

But no order for mediation was made.

In Morjaria v Mirza[20] , a complex claim over a failed joint venture, the judge decided a number of issues but many more remained unresolved. Mediation was recommended but not ordered.

In Soroka v Payne Hicks Beach[21], C sued DD for professional negligence, claiming a worse settlement of her matrimonial dispute as a result. DD denied liability but also denied that damage had been caused to C, as C would not disclose the settlement terms reached. C sought a split trial and then wanted ADR if she won on liability. Master Kaye refused a split trial. On ADR she said:

A split trial is on the facts of this case highly unlikely to enhance the prospects of an early settlement. Rather, it seems to me that a split trial is more likely to delay the time at which the parties will be in a position to sensibly consider settlement.

Just because the court can order the parties to participate in ADR and will do so in an appropriate case, does not mean that it will do so when there is an obvious information gap that is more than merely illusory.

In Parsons v Convatec[22], a mediation had taken place which had not led to settlement. The judge made directions aimed at producing better information exchange so as to make another mediation possible and useful (which he encouraged) - as happened in the 2024 case of Heyes v Holt[23].

In Grijns v Grijns[24], there was a directions hearing in September 2025, just over two months before trial in late November, at which the Master made a Fontaine order that “all times parties must consider” ADR, but did not actually order mediation, despite being empowered to do so of the court’s own motion. This was a year after the amendments to the CPR and a year after the decision of Miles j in DKW v City Football.

In Appiah v Leeds and York HNST[25], DD, a mental health trust, sought to strike out C’s claim for unlawful detention and forced medication. This was refused on the merits, but at the same time the need to observe the terms of ADR directions (and presumably orders) was underlined by the judge:

The order is clear that any party not engaging in the ADR proposed by the other side within 21 days of the proposal must provide a witness statement. It does not state that any party refusing to engage in ADR must provide a witness statement. In this case, even after Cs specified that their proposed ADR method was mediation. D2 did not begin to engage in ADR within 21 days of Cs' proposal; they expressly stated that their view was that expert evidence should be served first. In compliance with the Master's order, a witness statement should have been served setting out D2's reasons for not engaging with mediation within 21 days of 4 June 2024. The fact that DD did not expressly refuse to engage in ADR is nothing to the point.

I will thereby direct that DD now comply with paragraph 2 of Master Stevens' order (albeit belatedly) and serve a witness statement giving reasons it did not engage with mediation following receipt of C’s proposal. I would also urge the parties to review paragraph 2 of the Master's order (including the requirement to consider settling this litigation by any means of ADR at all stages), and to ensure that they comply with it.

3. Other miscellaneous decisions

In Zakoumis v Steele[26], C and D (respectively son and father) agreed a business deal at a mediation by which C would divest himself of shares and D would pay £200,000 in 28 days. C did so but D failed to pay the sum due, despite C’s enlisting the mediator M‘s help several times to remind D of the situation. C claimed that he needed the money to perfect another business deal and that D was well aware from surrounding circumstances and from what C had asked M to convey during and after the mediation about the urgency of the situation, justifying C’s claim for additional consequential losses. D denied that he had been made aware of special circumstances as to loss of profit or other extra expense that might satisfy the requirements of the second limb of Hadley v Baxendale and Victoria Laundry v Newman. D said that if C wanted to rely on what C claimed M had conveyed to D, he should have called M as a witness. C and D were the only live witnesses and M was not called. The judge held that C’s claim failed despite D’s breach in failing to pay, as C had failed to prove recoverable extra damage. Whether the mediator should or could have been called as a witness did not figure in the judgment: the judge relied the absence of adequate evidence adduced by C.

In Krishna v Gowrie[27], valuation reports produced by accountants in connection with a mediation were held to be privileged

In Cardiff City FC v McKay[28], the judge found that there had been no unambiguous impropriety which might justify removal of WP privilege from documents. It seem as if there is a trend only to find unambiguous impropriety sufficient to displace WP privilege in the clearest circumstances, which will be unlikely to include oral remarks during mediation. An interesting instance of this is Morris v Williams[29], where C’s solicitor made admissions about C’s fundamentally dishonest conduct in a letter marked WP save as to costs proposing settlement terms. D successfully argued that this letter should be admitted.

In RB Kensington & Chelsea v Beko Poland & Ors[30] - the continuing litigation relating to the Grenfell Tower disaster, in which mediation was long ago agreed to be set up - further directions to coordinate disclosure were given with the aim of facilitating the mutually agreed mediation. No stay of the litigation was ordered, and the trial date of April 2028 remained set.

4. Expectations for 2026?

As suggested above in relation to Assensus and Grijns, it is to be hoped that cases which look retrospectively at whether a party’s earlier refusal or failure to mediate was unreasonable will die out. The spectacle of judges – even in the Court of Appeal - taking seriously any arguments from counsel for a successful party, under no burden of proof, that mediation had no chance of success, when that counsel is seeking to exonerate their client from sanction (surely “they would say that, wouldn’t they?”), is unedifying and irritating to mediators used to seeing large gaps being closed by mediation. This is what happened in Assensus and has happened time and again in the years since Halsey[31]. In Grijns, the loser had of course forfeited the sympathy of the court by coming close to running a dishonest case apparently with a view to trying to force an unmeritorious settlement out of the defendants. The claimant certainly adopted an intransigent position over settlement terms, albeit of reducing strength.

But is mere intransigence any longer a safe basis for rejecting mediation? Parties are serially firm to the point of intransigence about the strength of their case and the weakness of their opponent’s case when on the record. The last thing any party will be inclined to do when on the record is to show any sign of weakness. But when the confidential environment of mediation is entered, the mindset is free to change, if so wished, because any signal of willingness to compromise is safely off the record in the event that settlement is not achieved. This has been a feature of mediation seriously underrated by judges who only deal with “on the record” attitudes and who had not themselves had direct experience of the process in private practice – a reducing number. It is why settlements are repeatedly achieved which looked wholly improbable when looked at from “on the record” positions or even in the light of earlier Part 36 or Calderbank offers. To order an apparently intransigent party into a short and sharp mediation of the kind ordered by Miles J in DKW Retail will give that party a chance to use the safety of the mediation to decide whether to send a different signal. In any but the simplest cases, the cost of such mediations will be trivial in comparison with the litigation costs or preparation for trial and trial itself, especially in a world where Grade A fee-earners in London may now expect over £500 per hour on detailed assessment, and will probably charge much more when free to do so.

What we may see is more cases in which judges consider whether or not they will order mediation when giving directions at CCMCs and pre-trial reviews. It will be interesting to see what kind of jurisprudence develops in exercising judicial discretion over the making of such orders. Now that so many more of the judges considering whether to make such orders have had direct personal experience of mediation, perhaps there will be less willingness to excuse any reluctance to mediate.

References

[1] [2024] EWHC 3231 (Ch)
[2] As amended on 1 October 2024
[3] [2025} EWHC
[4] [2025] EWHC
[5] [2017] EWCA Civ 369 
[6] [2017] EWCA Civ 117
[7] [2022] EWCA Civ 1409
[8] [2024] EWCA Civ 428
[9] [2025] EWHC 2609 (Ch)
[10] [2025] EWHC 1701 (KB)
[11 [2025] EWHC 1 (Admin)
[12] [2025] EWHC 2989 (Ch)
[13] [2025] EWHC 3399 (Ch)
[14] [2025] EWHC 541 (Comm) 
[15] [2025] EWHC 2530 (Ch)
[16] [2025] EWHC 2325 (Ch)
[17] [2025] EWHC 1305 (Ch)
[18] [2025] EWHC 1720 (Comm)
[19] [2025] EWHC 1367 (Ch) 
[20] [2025] EWHC 1961 (Ch)
[21] [2025] EWHC 602 (Ch)
[22] [2025] EWHC 1225 (Pat)
[23] [2024] EWHC 779 (Ch)
[24] Already considered above – see f/n 4 for citation
[25] [2025] EWHC 1537 (KB) 
[26] [2025] EWHC 1858 (KB)
[27] [2025] EWHC 341 (Ch)
[28] [2025] EWHC 1439 (Comm)
[29] [2025] EWHC 218 (KB) reported in [2025] JPIL issue 2
[30] [2025] EWHC 3276 (KB) 
[31]  See for instance Swain Mason v Mille & Reeve and Gore v Naheed