Court Ordered Mediation: A Landmark Development in Irish Litigation

The High Court in Burke v O’Connell [2026] IEHC 314, considered whether it has jurisdiction, to direct parties to engage in Mediation, even where one party objects. In this article, Elena O’Driscoll, Solicitor, reviews the judgment and its implications for litigation in Ireland.

Background

The case arose from a 10‑year dispute between an engineer and a farmer concerning alleged unpaid fees of €252,004. The Plaintiff sought an order under Order 56A, rule 2 of the Superior Courts, section 16 of the Mediation Act 2017 and the inherent jurisdiction of the Court. This was not merely a request that the Court invite the parties to Mediation, but that it also direct them to mediate.

The application was made on the basis that the legal costs associated with proceeding to trial were likely to be disproportionate to the value of the claim. The Defendant opposed the application as he stated that he was not going to change his views on the amount of fees due, he had already incurred significant amount of legal costs, and there was delay in suggesting Mediation.

Judgment

Mr Justice Twomey concluded that the Court does have jurisdiction, in appropriate cases, to direct parties to engage in Mediation. This power derives from the Court’s inherent jurisdiction to control its own process and to ensure the efficient administration of justice.

The Court drew a clear distinction between requiring parties to attend Mediation and compelling them to settle. An order directing Mediation requires participation in the process only. Parties remain free to withdraw and to proceed to trial if mediation is unsuccessful.

The Court also rejected the argument that such an order would infringe the constitutional right of access to the courts. It held that requiring parties to attempt Mediation represents a proportionate procedural step, which may cause limited delay and does not impede the right to a full hearing.

In exercising this jurisdiction, the Court emphasised that the decision will depend on the facts of each case. Relevant factors include 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 reduce the use of court resources. Any such order must be proportionate and justified in the circumstances.

Costs and the Reality of Litigation

A central feature of the judgment is its focus on the economic reality of litigation. The Court observed that disputes can reach a point where they are too expensive to continue, but also too costly to abandon, creating what it described as a “Catch‑22” situation for litigants.

In that context, Mediation may provide a practical mechanism to break that impasse, either by resolving the dispute or narrowing the issues. The Court also emphasised the wider public interest in reserving court time for cases which require determination.

Outcome

On the facts, the Court indicated that it would have been appropriate to order Mediation. However, it ultimately declined to make such an order at that stage, in light of a late indication from the Defendant that he was willing to engage in Mediation.

Commentary

Prior to this decision, Irish law had recognised forms of mandatory Mediation in limited contexts, most notably in personal injuries litigation under statute.[1]  However, the position was unclear as to whether the courts could require parties to engage in Mediation outside of this, with the High Court noting there was differing obiter judicial commentary on the issue: the Supreme Court had suggested that there may be circumstances in which Mediation could be mandatory, while in the High Court two years later, the view was that parties should not be forced to mediate.

This decision suggests that, in appropriate cases, the courts may require parties to engage in Mediation, even where there is resistance from one party. While such orders will not be made as a matter of course and will depend on the facts of each case, for practitioners, the message is clear: Mediation is not a mere procedural formality.  It should be considered at an early stage of proceedings and kept under consideration as the case develops.

[1] Civil Liability and Courts Act 2004, s15.