The recent decision of Mr Justice Twomey in J Burke and Associates Limited -v- Patrick O'Connell[1] (the "Burke Judgment") held that the Court has jurisdiction to direct unwilling parties to mediate in the absence of any express statutory power. The decision represents a major shift in the Irish Judiciary's attitude towards mediation and is likely to have a wide-ranging impact on the number of mediated disputes.
Mediation in Ireland is governed by the Mediation Act 2017 (the "2017 Act") and is frequently utilised to resolve cases, including those of particular complexity. However, until relatively recently, the Court's involvement in the mediation process has been largely peripheral. The Burke Judgment, alongside Practice Direction HC 141[2] issued on the same date, serves both to solidify the position of mediation as a first port of call in disputes, and to emphasise that litigation should now be viewed as a last resort.
The Burke Judgment
The Plaintiff in these contract dispute proceedings sought an order from the court directing that the parties engage in mediation before the case was set down for Trial. The Plaintiff had previously invited the Defendant to mediation, which the Defendant had refused, despite the risk of significant cost consequences[3] and the substantial brief fees involved if the case was to be set down. As the Defendant would not mediate voluntarily, Mr Justice Twomey was required to determine whether the Court can order unwilling parties to mediation, or whether it is restricted to the explicit power in the 2017 to invite the parties to mediate.
In its preliminary consideration of the issue, the Court stressed that a direction to engage in mediation is distinguished from a direction to reach settlement. As a core aspect of mediation is the voluntary nature of reaching agreement, it would remain open to the parties to initially participate in the process and then decide to withdraw. However, the Court observed that even the initial engagement with mediation could have value, likening it to parties meeting at the "steps of the Court" before trial, a process which often leads to settlement.
Mr Justice Twomey went on to consider whether the constitutional right of access to the Court precluded mandatory mediation. He noted that access to the Court is not absolute but balanced by, among other things, the Court's duty to use resources efficiently in the best interests of all litigants. Mr Justice Twomey held that if it was in all parties interests to mediate, it should be open to the Court to direct them to do so. He also considered the 2017 Act's introduction of mediation to the course of practically all litigation: declarations that parties have been advised to consider mediation are now an essential prerequisite to issuing proceedings, and the court can adjourn noncompliant cases.
Additionally, despite powers to impose mandatory mediation in personal injuries cases in the Civil Liability and Courts Act 2004[4], this legislation has never been found to be incompatible with the Constitution. In a related consideration, Mr Justice Twomey addressed whether the Article 6 ECHR right to a fair trial would be breached by Court directed mediation, but in reviewing decisions from England & Wales concluded that there would be no such breach.
The Court moved on to engage in a detailed discussion about the impact of high litigation costs on proceedings, and the related ability of litigants without means to use costs as leverage to force settlement of meritless cases. It considered a compelling argument in favour of mandatory mediation was that it enables the Court to reduce the cost of proceedings, avoiding situations where parties cannot afford continued litigation but could not meet the costs if they stop by providing an objective and independent assessment of the dispute and costs at an early stage.
Notwithstanding the many factors which tipped in favour of having jurisdiction to order mediation, the Court found the strongest arguments against such a power are that parties should enter mediation voluntarily, and a mandatory direction by the Court would reduce the chances of success. However, the Court emphasised again that decisions over settlement will always be in the power of the parties themselves. It found that obiter comments of Irish Courts made prior to the Mediation Act 2017, which state mediation must be entirely voluntary, should be read in light of the considerable development of Irish mediation law and practice, along with English and Welsh cases including DKH[5] and Churchill[6].
In respect of these developments, the Court reviewed statutory provisions, practice directions and Court practices where mediation was addressed, such as mandatory mediation in the Civil Liability and Courts Act, bullying and harassment cases, and clinical negligence cases[7]; and the mandatory disclosure of whether mediation had been attempted prior to set down in non-jury cases[8]. The Court also considered the solicitor's obligation in the 2017 Act to advise their clients to consider mediation, and the potential costs penalties of unreasonable failure to mediate[9], finding that these developments supported a determination that the Irish Court had jurisdiction to order mediation.
The Court noted a possible objection that, should the Oireachtas have intended for the court to have the power to order mandatory mediation, it would have empowered the Court through legislation. The Court's response was that general aspects of case management akin to adjournment facilitating settlement talks did not require legislation due to their limited impact. Similarly, the power to order mandatory mediation would only result in a limited delay of the case and so would not require empowering legislation.
Following the extensive consultation of the above points, the Court found that it has the power to order mediation between unwilling parties, as it has the jurisdiction to regulate its own process. However, before exercising this jurisdiction, it should be satisfied that such an order would have the prospect of either resolving or narrowing the issues in dispute. The Court also emphasised that any such order must be proportional in relation to both any delay in proceedings, and the legitimate aim of settling the dispute fairly at reasonable cost. The Court noted that these factors apply equally whether mediation is being considered of its own motion, or by application of one of the parties.
After establishing such a power, the Court turned to consider its use in the case before it. The Court's approach followed the logic that the relevant factors in considering an invitation to mediate would be equally applicable when directing to mediate, as set out by Justice Irvine in Atlantic Shellfish Limited -v- Cork County Council[10]. These factors included the presence of interlocutory orders; the conduct of the parties; the expense and delay caused by and potentially reduced by the mediation; whether the mediation would narrow issues; and how costs would be agreed. In addition to the non-exhaustive factors in Atlantic Shellfish, the Court considered factors identified by the Court in Churchill, including whether the parties were legally advised and the impact on the likelihood of success if they were not. The Court also considered any potential limitation issues, the costs of mediation relative to the parties resources and the value of the claim, and whether there had already been an unsuccessful attempt at alternative dispute resolution.
Decision
Between the first hearing and adjourned hearing, the Defendant agreed to mediation. The Court noted that while no Order was therefore required, it would indeed have made such an order directing the parties to attend mediation on the basis of the facts of the case before it.
Key takeaways
As it is now clear the Courts have the powers to mandate mediation, they may play an increasingly active role resulting from increased applications to the Court to order engagement. In addition, we would expect an increased willingness from otherwise reluctant parties to, at minimum, accept an invitation to mediation in light of the powers of the Court to force their participation should they refuse.
[1] [2026] IEHC 314
[2] Practice Direction HC 141 - Practice Direction relating to the Mediation Act 2017 and other Statutory Provisions relating to Mediation and Alternative Dispute Resolution, dated 20 May 2026
[3] Section 169(1)(g) of the Legal Services Regulation Act 2015, pursuant to which a Court may penalise a party in costs where he or she was unreasonable in refusing to engage in mediation.
[4] Section 15
[5] DKH Retail Ltd v City Football Group Ltd [2024] EWHC 3231 (Ch)
[6] Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416
[7] Practice Direction HC131 – Clinical Negligence Actions – Applications for Trial Dates, dated 8 April 2025
[8] Practice Direction HC127 – Non Jury List: Hearing of Witness Actions in the Non Jury List, dated 19 June 2024
[9] Section 169(1)(g), Legal Services Regulation Act 2015
[10] [2015] IECA 283
