Grenfell, Mediation, and the Myth of “The Earlier the Better”What the High Court’s latest Grenfell ruling tells us about timing, information, and realistic mediation
The High Court’s ruling in the Grenfell Tower Litigation ([2025] EWHC 3276 (KB)) offers one of the most nuanced and important judicial discussions to date on when mediation should take place in complex, multi-party litigation — and, just as importantly, when it should not.
The court (Mrs Justice Jefford DBE and Senior Master Cook) was unanimous, emphatic, and unusually reflective about ADR. Mediation was not merely encouraged; it was treated as inevitable. But the court firmly rejected the increasingly simplistic mantra that earlier mediation is always better.
This ruling deserves careful reading by litigators, mediators, insurers, and policy-makers alike.
Mediation Was Not in Issue — Timing Was
What is striking at the outset is what was not disputed:
- All parties agreed that mediation should take place
- The court agreed
- The parties agreed it should be a substantial mediation — a week long, with at least two mediators
- There was broad agreement that mediation should involve all parties, given the extensive contribution claims
This was not a case of ADR resistance. It was a case about readiness.
The core issue was simple but profound:
Can mediation be effective before disclosure — particularly quantum disclosure — is complete?
The Court’s Central Insight: Mediation Requires Shared Informational Confidence
The court rejected any idea that disclosure must always be complete before mediation. Equally, it rejected the notion that mediation should be pushed ahead simply because it might save costs.
Instead, the court focused on something mediators recognise instinctively but courts rarely articulate so clearly:
For mediation to work, all parties must feel able to participate constructively and on an informed basis.
The problem here was not a lack of goodwill. It was asymmetry of information and confidence.
Some defendants were prepared to mediate on a “broad brush” basis. Others — particularly those with more limited resources — were not satisfied that they understood:
- the structure of the quantum claim
- the factual basis for post-fire decision-making
- the alleged mismanagement said to have increased losses
Without that understanding, those parties feared that mediation would be speculative, defensive, and ultimately wasted.
The court accepted that concern as legitimate.
A Rare Judicial Acknowledgement: Failed Mediation Has Costs Too
One of the most important passages in the ruling is the court’s explicit recognition that mediation itself carries cost and risk:
“There is… a real risk that the costs of the mediation itself may be wasted.”
This is an unusually candid acknowledgment from the bench. Courts frequently speak of mediation as cost-saving, but far less often recognise that poorly timed mediation can itself be inefficient and unfair.
The court also recognised an uncomfortable truth:
- Well-resourced parties may tolerate multiple mediations
- Less well-resourced parties may not
That imbalance mattered. A mediation process that assumes repeated attempts risks excluding or pressuring those who can least afford it.
Not Anti-ADR — Anti-Performative ADR
Importantly, the court did not say mediation should wait because disclosure is magic.
On the contrary, it rejected the idea that there is something inherently transformative about post-disclosure ADR. What mattered was not formality but clarity.
Some defendants’ concerns about disclosure were described as “overstated”. Others were not.
The decisive point was this:
Mediation should not be ordered or expected at a stage where some parties reasonably believe they lack the information necessary to engage meaningfully.
In other words, ADR should not be performative — something done to tick a box, satisfy a protocol, or create costs pressure.
That is a powerful corrective to current trends.
A Sophisticated, Modern Approach to ADR Case Management
The ruling also reflects a mature, modern judicial approach to ADR:
- Mediation is expected — but not prescribed in rigid form
- There is recognition that mediation may occur more than once
- There is encouragement, not compulsion, to mediate earlier if circumstances change
- There is an explicit link between ADR timing and realistic trial listing
Notably, the court moved the trial date back — openly and unapologetically — to allow space for meaningful mediation once disclosure is complete.
That is a clear signal: ADR is not an interruption to litigation; it is part of its architecture.
The Wider Lesson: Timing Is Substantive, Not Procedural
The real lesson from Grenfell is not confined to mega-litigation.
For all civil cases — particularly those involving:
- multiple parties
- contribution claims
- complex quantum
- public bodies or insurers
— the timing of mediation is a substantive decision, not a procedural afterthought.
Early mediation is valuable only if parties can negotiate in good faith with sufficient understanding of risk. Otherwise, it becomes:
- defensive
- positional
- risk-averse
- and ultimately unsuccessful
That helps no one.
Conclusion: A Judicial Endorsement of Thoughtful Mediation
This ruling should reassure mediators and ADR professionals that the courts understand what effective mediation actually requires:
- trust in the process
- confidence in the information
- equality of participation
- and realism about costs and capacity
The message is not “delay mediation”. It is:
Mediate when parties are ready to settle — not merely ready to attend.
In that sense, Grenfell may mark an important recalibration in the judicial conversation about ADR: less rhetoric, more realism, and a deeper respect for mediation as a serious dispute-resolution tool rather than a procedural checkbox.