Where a successful party refuses to agree to ADR despite the court’s encouragement,that is a factor which the court will take into account when deciding whether his refusal was unreasonable. The court’s encouragement may take different forms. The stronger the encouragement, the easier it will be for the unsuccessful party to discharge the burden of showing that the successful party’s refusal was unreasonable (Halsey).

Where an ADR order has been made, or mediation suggested, as for example, in Dunnett v Railtrack, but a party nevertheless refuses to embark on the ADR process at all, that party runs the risk that for that reason alone his refusal to agree to ADR will be held to have been unreasonable, and that he should therefore be penalised in costs. It is to be assumed that the court would not make such an offer unless it was of the opinion that the dispute was suitable for ADR.