Mr Justice Twomey in the recent High Court decision of J Burke & Associates Ltd v O’Connell [2026] IEHC 314, confirmed that Irish courts have the inherent jurisdiction to order parties to mediate civil disputes, even where one or both parties object. Mr Justice Twomey’s decision is a significant shift in Irish civil litigation, clarifying that mediation is not merely encouraged, but can be made mandatory in appropriate circumstances.
Jurisdiction to order mediation
The Court’s inherent jurisdiction to order parties to mediate in appropriate cases is rooted in the Court’s duty to manage its own process, ensure efficient administration of justice, and protect the constitutional right of access to the courts for all citizens. However, the exercise of this power is not absolute; and must be proportionate and not unduly delay access to justice or compromise the right to a fair trial.
Statutory and practice direction support
The judgment draws on several statutory provisions, notably:
- Section 15 of the Civil Liability and Courts Act 2004 which allows for mandatory mediation in personal injury cases upon application.
- Section 14 of the Mediation Act 2017, which obliges solicitors to advise clients to consider mediation before commencing proceedings.
- Section 16 of the Mediation Act 2017, which permits courts to invite parties to mediate.
- Section 169(1)(g) of the Legal Services Regulation Act 2015, which permits the court to penalise parties in costs for unreasonably refusing to mediate.
Criteria for exercising discretion
The Court set out a non-exhaustive list of factors to be considered when deciding whether to order mediation, including the stage of proceedings, the likely effectiveness of mediation, the costs involved, the attitude of the parties, and whether mediation could narrow the issues or save court resources. The decision to order mediation must be proportionate and justified on the facts, particularly where the costs of litigation threaten to outweigh the value of the dispute.
The proceedings
The dispute between Burke and O’Connell was ongoing for 10 years and concerned unpaid fees of €252,004. The Court noted that the disproportionate legal costs, and the protracted nature of the proceedings made the case particularly suitable for mediation. While the Court concluded it would be appropriate to order mediation in this instance, it did not actually do so as the defendant indicated a willingness to mediate (albeit conditionally), leaving the door open for a future application, if necessary.
Conclusion
In circumstances where it is often unwise to ignore a strong recommendation from the bench, the Irish courts have in many instances persuaded less enthusiastic parties towards mediation, often resulting in settlement. This judgment is however a significant development in Irish civil procedure and removes any ambiguity about the Court’s power to intervene where parties are entrenched in costly and protracted litigation.
The judgment also reflects a broader trend across common law jurisdictions towards embedding ADR within the litigation process. By drawing on English jurisprudence, particularly Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416, this decision signals a willingness to harmonise Irish practice with international best practice. Importantly, it recognises that mediation, even when not entered into voluntarily, can be effective and in the best interests of litigants.
It has long been the case that parties who unreasonably refuse to mediate risk adverse costs consequences, but they now also risk the prospect of being compelled by the court to engage in mediation. Having said that, mediation itself remains a voluntary process and an order to mediate should not be interpreted as an order to settle.
This decision highlights the Court’s role in ensuring that justice is not only done but is done efficiently, proportionately, and in the best interests of all parties. Litigants and legal advisers should expect increased judicial willingness to direct mediation and should continue to proactively consider ADR as proceedings progress.
