The Irish High Court has confirmed that its power to invite parties to mediate extends to ordering the parties to mediate, even where it is against the parties’ will, and it can adjourn proceedings to allow the mediation to occur.
This is the first time an Irish court has ordered parties in a non-personal injuries case to mediate their dispute, and follows the approach recently taken by the courts in England and Wales. It remains to be seen whether amendments will be made to the High Court Practice Direction HC141, which was published on the same day as the Burke judgment and refers to mediation as an entirely voluntary process (in line with the Mediation Act 2017).
What did the High Court decide in Burke v O’Connell?
J Burke & Associates Limited v Patrick O’Connell [2026] IEHC 314 involved the alleged non-payment of fees, resulting in ten years of High Court litigation. When the case was ready for trial, with substantial brief fees imminent and the possibility that the costs payable by the losing party would likely exceed the value of the dispute, the plaintiff applied to the court to invite or direct the parties to mediate. As the defendant did not wish to mediate, the court considered its ability to ‘direct’ (as opposed to merely invite) the parties to mediate.
The court noted that mediation is front and centre of practically all civil disputes in Ireland as a result of section 14 of the Mediation Act 2017, which requires solicitors to advise their clients to consider mediation. It is clear that the Irish legislature wants mediation, rather than litigation, to be the first port of call for civil disputes, save for good reason. This importance is illustrated by the significant financial penalties which can be imposed by the courts for failure by solicitors to comply with section 14.
Does court-ordered mediation breach a party’s right of access to the courts?
The court acknowledged the right of access to the courts under the Irish Constitution, as well as the right to a fair trial under the European Convention on Human Rights (“ECHR”), and considered that in principle these rights are not breached by court-ordered mediation. The Court noted that short delays to proceedings are regularly imposed, including by way of adjournments to allow the parties to attempt to resolve disputes, and pointed to the existence of mandatory mediation in personal injuries cases for over 20 years that has not been found to contravene that constitutional right.
The court referred to the English case of Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416, where adjourning proceedings to direct the parties to mediate was found not to breach the ECHR right to fair trial.
The court further made the point that a court-directed mediation does not compel settlement. It merely requires parties to commence a mediation process and either party can withdraw at any stage.
Court resources
The court considered that it is the courts’ role not just to administer justice but to make the system better for litigants. When allocating hearing dates, the public interest must be taken into account and where a mediation is successful, this frees up hearing dates for other litigants (whose constitutional right of access to the courts must also be protected).
Financial considerations and legal costs
The court noted there can often be a dispute as to who is liable for costs incurred up to the point of a potential settlement, which can act as a barrier to settlement. Mandatory mediation can often provide an invaluable opportunity for objective assessment of the dispute by a mediator, to include an assessment of the legal costs, providing a “reality check” for the parties.
The power to order mediation is within the court’s inherent jurisdiction
The Irish High Court found that the power to order the parties to mediate is within its inherent jurisdiction and would not require legislation. However, there should be a prospect of the dispute being resolved or the issues in dispute being narrowed. Further, any such order must be proportionate, both in not unduly delaying a party’s right of access to the court if the mediation was unsuccessful, but also in achieving the ‘legitimate aim of settling the dispute fairly and at reasonable cost’.
The court further noted that the power to order a mediation exists either through the court’s own motion or on application by one of the parties, and it can be ordered even if both parties object.
The court also observed that just because a court has the power to order parties to mediate, it does not mean that this is a power that will need to be exercised regularly, because the prospect of such an order is likely to be sufficient to incentivise parties to mediate.
What factors may be considered by the court when exercising its discretion to order mediation?
The court considered that the same factors should apply whether the court is inviting the parties to mediate or exercising its discretion to order mediation. These factors will vary depending on the circumstances of the particular case. The most important factors for deciding whether to exercise its discretion in this case included the following:
- the relative costs of engaging in mediation compared to the costs of the proceedings (including a possible appeal);
- whether ordering the parties to incur mediation costs would be proportionate to the circumstances of the dispute;
- given the legal costs of resolving the dispute were likely to exceed the value of the dispute, logic suggested that the parties should attempt mediation;
- mediation may lead to narrowing of the issues in dispute (and even if no settlement is reached reduce the amount of time that will be taken at trial and thus the costs of a trial);
- mediation could save court resources and a significant amount of court time at hearing; and
- there was no suggestion by the parties that if it were to order mediation and it was not successful, that the parties constitutional right of access to the courts would be impaired.
The court found that, based on these factors, this was an appropriate case to order mediation, both in the interests of the parties and in the public interest of efficient use of court resources. However it ultimately refrained from making an order in this case as the defendant had conditionally agreed to mediate.
Other recent developments – High Court Practice Direction HC141
High Court Practice Direction HC141 was made by the President of the High Court on the same day as the decision in Burke was handed down. It reminds practitioners and litigants of the need to comply with the provisions of the Mediation Act 2017 (the “2017 Act”). This includes the section 14 requirement that prior to issuing proceedings, a practising solicitor must advise its client to consider mediation and to provide them with information about the advantages of alternatives to litigation, as well as the benefits of mediation. The Practice Direction, which came into effect on 3 June 2026, also stresses the adverse consequences of non-compliance with this mandatory requirement, including adverse costs consequences.
The Practice Direction refers to two further recent decisions of the Irish Courts that highlight the importance of section 14 compliance:
- Byrne v Arnold [2024] IEHC 308 – where a costs reduction of 5% was applied by the High Court as a result of non-compliance with section 14 of the 2017 Act; and
- V Media Doo & First Click Marketing Operations Management Limited v Techads Media Limited [2025] IEHC 430 – where the High Court confirmed that a solicitor’s failure to comply with the 2017 Act requirements, including the provision of a statutory declaration confirming such compliance (as required by section 14(2) of the 2017 Act), would result in adjournment of proceedings until those statutory requirements had been met.
The Practice Direction also refers to the role of the court in encouraging mediation, framed in terms of its power to invite the parties to consider mediation during proceedings under section 16(1) of the 2017 Act. Reference is also made to section 6(2) of the 2017 Act, which provides that participation in mediation is voluntary.
It will be interesting to see if this practice direction is updated in future to take account of the Burke decision, and the fact that the court has inherent jurisdiction to order (and not merely invite) the parties to mediate in appropriate circumstances.
Key takeaways for those involved in litigation
Both the decision in Burke and High Court Practice Direction HC141 underline the importance of mediation and the role it can have both before proceedings are issued, as well as during the litigation, and are a reminder of the consequences of non-compliance with obligations under the 2017 Act, including costs consequences.
Contact us
If you would like to discuss any of the matters addressed above, please contact Disputes and Investigations partners April McClements, Aisling Kavanagh or Julie Murphy-O’Connor or your usual Matheson contact.
