Recent Developments In Mediation: A New Practice Direction And High Court Judgment On Court Ordered Mediation

The law in relation to certain aspects of Mediation in this jurisdiction has attracted significant attention recently as a result of a number of High Court developments.

Practice Direction relating to the Mediation Act 2017 and other Statutory Provisions relating to Mediation and Alternative Dispute Resolution (HC 141) came into operation on 03 June 2026, while a High Court decision, in J. Burke & Associates Ltd. v O’Connell [2026] IEHC 314 (Burke) considered the power of the courts to direct parties to enter into a mediation in respect of a dispute the subject of on-going legal proceedings.

Practice Direction HC 141

The purpose of HC 141 is to emphasise the importance of compliance with the Mediation Act 2017 (2017 Act) (as well as similar provisions in other statutes relating to mediation and alternative dispute resolution (ADR)) and to flag the potential consequences of non-compliance.

• In particular, HC 141 stresses the mandatory nature of s. 14 of the 2017 Act, which requires solicitors to provide their clients with certain information on mediation, including its benefits, prior to the issuing of proceedings. A solicitor must also file a statutory declaration with the court confirming compliance with their obligations under s.14, failing which the court will adjourn the proceedings.

• As noted in HC 141, the courts have imposed a costs penalty on account of non-compliance with s. 14. In Byrne v. Arnold [2024] IEHC 308, the High Court held that the costs recoverable by the successful party should be reduced by 5%, and it noted that courts may impose larger penalties in the future.

• Solicitors acting for a plaintiff may not seek a hearing date for the proceedings, or any application in the proceedings, without first confirming compliance with s. 14.

• S. 16(1) of the 2017 Act allows the High Court to invite parties before it to consider mediation. Unreasonable refusal or failure to consider using mediation following an invitation to do so is a factor which the court may have regard to in awarding costs. HC141 sets out that parties and their legal representatives should carefully consider a court invitation to consider mediation.

• HC141 explicitly states that personal injuries actions come within the scope of the 2017 Act and this is separate to the power of the court to direct parties to such actions to attend a mediation conference pursuant to s. 15 of the Civil Liability and Courts Act 2004.

Mandatory Mediation Considered by the High Court

While the 2017 Act states that participation in mediation is voluntary, the High Court in the Burke judgment considered whether a court can order parties to mediate a dispute, against their will, or is it restricted to simply inviting the parties to mediate.

Background

The dispute before the court concerned the alleged non-payment of professional fees owed to an engineering firm, resulting in 10 years of High Court litigation. The plaintiff applied to the court for an order inviting or directing mediation, pursuant to Order 56A, Rule 2 Rules of the Superior Courts, s. 16(1) of the 2017 Act and/or the court’s inherent jurisdiction.

Position of the Parties

It was argued by the plaintiff that mediation at this stage could substantially reduce costs and potentially resolve the dispute before further expenses were incurred. It was also noted that the legal costs likely to arise were disproportionate to the sum in dispute. The defendant refused mediation on several grounds, including the substantial legal costs already incurred and the late stage at which mediation was proposed, namely when the matter was ready for trial.

Factors considered by the High Court

The court held that in suitable cases it does have an inherent jurisdiction to direct parties to engage in mediation. Its conclusion was based on a number of factors, including;

• It is not an order by a court to the parties to reach a settlement of their dispute but instead, simply an order requiring parties to engage in a process of mediation. Initially participating in the process is all that is required of the parties. The parties are free to withdraw from mediation at any time.

• The power to direct mediation is an inherent power of a court in order to ensure the efficient and effective operation of the courts. Directing mediation may enhance the litigation process by facilitating earlier engagement between the parties and narrowing the issues in dispute, thereby promoting more efficient resolution.

• A direction to mediate does not contravene the constitutional right of access to the courts, since it usually involves no delay, or a very limited delay in the litigation. Further, because a person has a right to court access does not mean that a court cannot take account of the most efficient use of court resources. 

• The use of mandatory mediation, permitted by statute in certain specified areas of law, including in personal injuries litigation, has been established without any finding that it amounted to a contravention of constitutional rights.

• The fact that the courts apply financial penalties for failure by solicitors to comply with the 2017 Act illustrates the importance which the courts attach to litigation being the last resort in resolving civil disputes.

• The role of a court is to make the system of resolving disputes better for litigants and to act in the best interests of all parties to litigation. The courts should attempt to find some way to provide an affordable way to resolve disputes. By providing a more cost-efficient alternative, court ordered mediation may enable more individuals to vindicate their rights.

 The court felt the strongest point against mandatory mediation is that to have any chance of success the parties should enter mediation voluntarily. However, it felt that while it may be true that voluntary mediation has a greater chance of success, one of the real benefits of mediation (whether voluntary or mandatory) is that it brings the parties together in one location to focus on their dispute and so can lead to settlement.

Conditions for making an Order

Before exercising its jurisdiction to direct mediation, the court noted there should be a prospect of resolving the dispute or a narrowing of the issues. In addition, any such order must be proportionate, both in not delaying unduly any party's constitutional right of access to the courts (should the mediation be unsuccessful), and in achieving the legitimate aim of settling the dispute fairly and at a reasonable cost.

Considerations when making an Order

The court was of the view that a non-exhaustive list of factors considered by a court in deciding whether to invite parties to mediate would also be applicable to a decision to order parties to mediate. While it will depend on the facts of any given case, such a non-exhaustive list was set out in Atlantic Shellfish Ltd v Cork County Council [2015] IECA 283 as follows:

• the manner in which the parties had conducted the litigation to date.

• the existence of any relevant interlocutory orders.

• the nature and potential expense of the proposed ADR.

• likely effect on the progress of the litigation should the ADR prove unsuccessful.

• potential saving in time and costs.

• extent to which ADR can or might potentially narrow the issues. 

• any proposals made by the applicant that might be dealt with in the course of the ADR.

• any proposals as to how the costs of such a process might be borne.

Application to this case 

The court did consider this case to be an appropriate one in which to exercise its discretion to direct the parties to engage in mediation. However, it transpired that such an order was not necessary as the parties agreed to enter mediation.

Key Takeaways

• HC141 makes clear that non-compliance with the 2017 Act may have significant adverse consequences in terms of delay and wasted costs. All practising solicitors should, therefore, ensure timely and proper compliance.

• The 2017 Act references the voluntary nature of mediation but in the Burke judgment, the High Court concluded that it has jurisdiction to order mediation in appropriate cases. The court noted it is the voluntary nature of reaching agreement at mediation, as distinct from voluntarily/compulsorily attending a mediation, which is a key attribute of every mediation.

• If it is to make such an order, the court will need to be satisfied that there is a prospect of a resolution of the dispute, or of a narrowing of the issues in dispute, and that the court ordered mediation is proportionate and does not significantly impact the parties’ constitutional right of access to the courts.

• Unreasonable resistance to mediation can result in a costs penalty pursuant to the 2017 Act while, according to the Burke decision, it may also result in a court order directing mediation. However, such an order was not ultimately made in the Burke judgment and as a result, this aspect of the decision will not be subject to appellate consideration. As such, there remains some uncertainty as to how this aspect of the judgment will be treated in future cases or whether it will receive further judicial consideration.