Ordered To The Table: Irish Courts Confirm Power To Compel Mediation

Can a court order parties to mediate a dispute, against their will, or is a court restricted to simply inviting the parties to mediate? This is a question of relevance to every civil dispute heard in the Irish courts, given the central role which mediation now plays in the resolution of disputes.

The recent High Court judgment of Justice Twomey in J Burke & Associates Limited v Patrick O'Connell [2026] IEHC 314, delivered on 20 May 2026, answers that question decisively. The decision confirms that Irish courts possess an inherent jurisdiction to order unwilling parties to mediate and carries significant practical implications for how litigants and their adviser’s approach, and resist, mediation in commercial disputes.

Background

The dispute between J Burke and Mr. O'Connell was, in Justice Twomey's words, "a classic small town Ireland dispute" — a claim by an engineering firm for unpaid fees of €252,004 allegedly owed by a farmer in connection with engineering services provided in relation to his litigation with Kilkenny County Council regarding his lands.  This dispute had resulted in ten years of High Court litigation

Counsel for the plaintiff brought a motion before the Court asking it not just to "invite" the parties to mediate, but also to "direct" them to do so, describing the application as one in which he was "seeking to do himself out of work" because if the case went to trial, there would be "no winners apart from the lawyers

Costs Conundrum and “Catch 22” of high court litigation

The plaintiff emphasised that imminent trial would trigger substantial brief fees, potentially €25,000–€75,000 per counsel per side, and that the total litigation costs could “overshadow any award of this Honourable Court." The Court noted this was a common occurrence in the High Court, due to the very low financial thresholds for cases to be heard in that court relative to the level of legal costs applicable there.

The court described the "Catch-22" of High Court litigation, which it stated was a lot like war — easy and relatively cheap for one person to start, but not so easy, and potentially very expensive, to end.

The Catch-22 crystallises as the legal costs mount, leaving a party with the decision whether to take a significant hit and walk away from the litigation, or "go all in" and spend even more in the hope of a favourable,  costs order, with the risk of a bigger loss if unsuccessful? The dispute over the value of the original claim can become, in substance, primarily a dispute about which party will have to pay the legal costs which may already far exceed the value of what is actually being contested.

Mr. O'Connell opposed mediation on five grounds: he was not going to change his views on the amount of fees due; he had already incurred significant legal costs including on discovery; there had been significant delay in suggesting mediation since it was only being raised when the case was ready for trial; as only one party was willing to mediate, it was "not necessarily going to be successful"; and mediation would create additional expense rather than saving money.

As discussed below, the Court rejected each of these objections as a ground for refusing to order mediation.

Decision of Justice Twomey

Inherent jurisdiction

The central question as to whether the courts have jurisdiction to order parties to mediate against their will had not been resolved previously by the Irish courts so Justice Twomey undertook an extensive analysis of statute, court practice and caselaw. 

Section 15 of the Civil Liability and Courts Act 2004 already provided for court-ordered mediation in personal injury cases on the application of a party, which represented the first introduction of mandatory mediation into Irish law.  Section 14 of the Mediation Act 2017 also introduced dramatic changes by mandating what legal advice a solicitor must give her client before issuing proceedings which includes advising the client to consider mediation as a means of resolving the dispute and providing information on mediation services. The gravity which the Oireachtas attaches to this obligation is evident from s.14(3), which provides that if a solicitor fails to confirm by statutory declaration that she has so advised her client, the court has no discretion and shall adjourn the proceedings. 

Section 169(1)(g) of the Legal Services Regulation Act 2015 entitles the court to penalise a party in costs where it considers that party was unreasonable in refusing to engage in mediation, and this applies to all civil disputes, not just personal injury cases. The Court drew a particularly sharp inference from this provision.  It would defy logic for a court not to be able to order a party to mediate when the same court is entitled to penalise a litigant for failing to mediate which is akin to saying that a court can order damages for failing to comply with a contract but cannot order the party to comply with the contract in the first place.

Byrne & Ors v Arnold [2024] IEHC 308 was cited which demonstrates the real and substantial financial consequences of non-compliance, where a failure by a solicitor to provide the statutory declaration pursuant to s.14 (3) resulted in a 5% reduction of costs.  Of particular significance was the Court's express indication that, in future cases, such a reduction could appropriately fall within the range of 10–15%. By way of illustration, Justice Twomey cited costs of €500,000 as a not uncommon figure in High Court proceedings, observing that a penalty for non-compliance could be as much as €75,000.

The court also highlighted the existing court practices which support an inherent jurisdiction, such as in respect of all bullying and harassment cases, that "no case shall be listed for trial unless and until the parties have been to Mediation save for good reason" .  Practice Direction HC 131, relating to clinical negligence cases, effectively subjects a party seeking a trial date to mandatory mediation against their will where an opponent wishes to mediate as it is required to obtain a hearing date.  The court acknowledged that S16(1) of the Mediation Act 2017 refers to invitations to mediate, but that cannot be interpreted as implying a court does not have jurisdiction to order mediation, in light of the explicit reference in s16(5) to that power being without prejudice to the courts other discretionary powers. 

Turning to the facts of the case, the Court rejected each of the Defendants arguments. It reasoned that compelling mediation is not compelling settlement, since parties may withdraw at any time, and that value can lie simply in bringing parties together and allow for the narrowing of issues. It held that mandatory mediation is compatible with the constitutional right of access to courts as it usually involved no delay, or a very limited delay in litigation if the mediation is unsuccessful. Further, the Court held that mediation is supported by the public interest in the efficient use of court resources. 

On the particular facts, the Court declined to make a mandatory order. A few days prior to the second hearing of the motion, the defendant had agreed to mediate conditional upon the costs of the motion being reserved.  In light of that letter, the court concluded that while it was a case in which it would be appropriate to order the parties to mediate, it would not do so at this juncture, encouraging the parties to pursue discussions to see if final agreement on mediation could be reached.

This judgment carries significant practical consequences for parties in dispute:

1. Mediation is no longer optional in the same way it once was. The decision confirms that Irish courts possess the inherent jurisdiction to compel parties to engage in mediation, even over objection. A refusal to mediate particularly at a late stage of proceedings when costs are escalating is unlikely to be viewed sympathetically by the courts.

2. Cost disproportionality is a critical factor. Where the anticipated costs of litigation threaten to dwarf the sum in dispute, courts are likely to view a mediation order as both proportionate and appropriate. Parties should be alert to this when assessing their litigation strategy.

3. The Mediation Act 2017 and costs sanctions give real teeth to mediation obligations. The Court confirmed that the statutory framework already in place including the prospect of adverse costs orders under the Legal Services Regulation Act 2015 reinforces the obligation on parties to genuinely consider mediation. Refusing without good reason carries tangible financial risk.

4. Late-stage resistance carries particular risk. The defendant's argument that mediation was being sought too late in the proceedings did not shield it from the Court's scrutiny. The court stated just as it was never too early to mediate, nor was it was never too late to mediate. Parties who have not actively engaged with mediation as proceedings mature should expect close judicial attention to their conduct in this regard.

5. Compelling mediation does not mean compelling settlement. The Court was clear that ordering parties to mediate does not breach constitutional rights because parties retain full freedom to withdraw from the process. This addresses a common objection and removes what had been perceived as a principled barrier to such orders.

Key Takeaway for Clients

This decision sends a clear signal: parties to commercial disputes in Ireland should engage proactively and genuinely with mediation and should document that engagement carefully. Courts will scrutinise resistance to mediation, particularly where costs are disproportionate to the sums at stake, and adverse costs consequences may follow where a refusal is found to have been unreasonable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.