2026 IEHC 314

(1)of the Mediation Act 2017 and/or the inherent jurisdiction of the Court4 inviting or directing the parties, with particular regard to [Mr. O’Connell], to engage in mediation within a time specified by this Honourable Court and upon such terms and directions as this Honourable Court shall deem appropriate under the circumstances.’ (Emphasis added) 11. This application was first heard by this Court on 23 February 2026 and was grounded on the affidavit of Burke’s solicitor. In many cases, an application for a court to ‘invite’ the parties to mediate will lead to mediation. This is because, in the absence of good reasons, a refusal to mediate may be perceived as being ‘unreasonable’ and could lead to the refusing party not getting all their legal costs, even if they win the litigation. This is because under s.169

(1)(g) of the Legal Services Regulation Act, 2015 (“2015 Act”), a court may penalise a party in costs where he/she was ‘unreasonable’ in refusing to engage in mediation.

1. Crucially however, the motion in this case did not lead to Mr. O’Connell agreeing to mediate. This was because at the hearing on 23 February 2026, counsel for Mr. O’Connell submitted that Mr. O’Connell did not wish to mediate the dispute because: • Mr. O’Connell was not going to change on his views on the amount of fees due to Burke; • he had already incurred a significant amount of legal costs (including on discovery); • there had been significant delay in suggesting mediation, since it was only being suggested when the matter was ready to go to trial; 4 An amendment was permitted to the motion to include the term ‘and/or the inherent jurisdiction of the Court’, which was not contained in the motion that had been filed. 4 • as only one party was willing to go to mediation, the mediation was ‘not necessarily going to be successful’; and • mediation will create additional expense, rather than saving money.
2. In light of these objections, it became clear that Mr. O’Connell was unlikely to take up the Court’s invitation to mediate, were it to issue one. Accordingly, that part of the motion, which contained an application to ‘direct’ the parties to mediate, assumed considerable significance at the hearing on 23 February
4. As this Court was not provided with any precedent of an Irish court ordering parties to mediate, and as there was no replying affidavit filed by Mr. O’Connell, this Court gave Mr. O’Connell an opportunity to put in a replying affidavit, as well as an opportunity to make submissions on the law regarding court-ordered mediation. For this reason, the hearing was adjourned until 18 March
6. The judgment which follows therefore considers both the oral submissions made at the first hearing on 23 February and at the second hearing on 18 March, as well as the affidavits which were filed on behalf of both parties. Why court-directed mediation is being sought now
7. Counsel for Burke submitted that the reason he was asking the Court to invite/order mediation after 10 years, was because the case was now ready to be set down for trial. This meant that both clients are now on the point of incurring significant brief fees to their respective counsel. He stated: ‘As soon as it is set down for trial the parties are entitled to charge the brief fees. We are trying to reduce legal costs by trying to mediate beforehand, and again I’m not trying to talk myself out of work, but it is in the clients’ best interest to avoid the additional legal fees of going to set it down for trial, and the brief fees, if we can avoid 5 it. [….] we are trying to reduce the temperature down and see if we can get some resolution.’ (Emphasis added) The amount of legal fees which are hoped to be saved by mediating
8. A key reason for this application for court-ordered mediation is the amount of legal costs which might be saved. To understand the significance of the point being made by counsel for Burke, one needs an appreciation of the sum which he is hoping to save by mediating the dispute at this juncture. However, it is difficult to be precise about the level of brief fees (and indeed other legal costs) which might be saved, were this case to be resolved by mediation at this stage. This is particularly so, because Burke thinks the case could last three weeks, while Mr. O’Connell thinks it could last three days. Nonetheless, based on recent cases regarding brief fees,5 it seems possible that brief fees for junior and senior counsel could be anywhere from €25,000 to €75,000 for each side. This would be total brief fees for resolving the dispute of up to €150,000 (and so excluding other legal costs, i.e. the solicitors’ instruction fees,6 daily refresher fees etc.). If the combined brief fees are anywhere close €150,000, then it seems likely that the costs of mediation would be a fraction of this figure. The total costs in this case could be greater than the sum in dispute
9. While the pressing reason for the application to have the case mediated now was the brief fees which were about to be incurred, counsel for Burke also relied on the amount of the total legal costs which would have to be paid by both parties were the case to go to trial 5 In Euro Safety and Training Services Ltd v An Foras Áiseanna Saothair [2016] IEHC 161 Barrett J. discussed a cost estimate of €25,000 for junior counsel and €40,000 for senior counsel. In Be-Spoke Capital AG v Altum capital Management LLC [2022] IEHC 524, O’Moore J. stated that a brief fee of €80,000 ‘may be a bit ambitious’. In Heaney v Depuy International Ltd [2017] IEHC 355, Barr J. noted that two senior counsel had marked a brief fee of €75,000 each, and two junior counsel had marked a brief fee of €50,000 each. In Cafolla v Kilkenny and Others [2010] IEHC 24, Ryan J. noted that a senior counsel’s brief fee was marked at €100,000 and was reduced to €75,000 by the taxing master, and junior counsel’s brief fee was marked at €65,000 and reduced to €50,
10. In BC v HSE [2026] IEHC 283, a case which was expected to take 6 weeks, brief fees of €95,000 to senior counsel and €65,000 were allowed by the Legal Costs Adjudicator. 6 In BC v HSE [2026] IEHC 283, a case which was expected to take 6 weeks, a solicitors’ instruction fee of €520,000 was allowed by the Legal Costs Adjudicator. 6 (and presumably a possible appeal). In this regard, Burke’s solicitor gave sworn evidence that in the context of a claim for €252,004: ‘legal fees may overshadow any award of this Honourable Court’. Based on this Court’s experience of High Court legal costs, it seems entirely possible that the losing party might have to pay €300,000 (or perhaps much more) in its own costs and its opponent’s costs, to resolve a dispute over €252,
12. Unfortunately, this is a common occurrence in the High Court. This is because our laws provide for very low financial thresholds for cases to be heard in the High Court relative to the level of legal costs in that court. Thus, for an everyday case, such as this one, the value of the dispute needs only to exceed €75,000 to be to be heard in a court with ‘millionaire’7 levels of fees (and in personal injury cases, the threshold is even lower, as the quantum of damages sought need only exceed €65,000).8 €3 million family law case in Circuit Court but €75,001 business dispute in High Court
13. It is striking that if this were a family law dispute over assets worth up to €3 million, this case would be heard in the Circuit Court.9 It is difficult to understand why Mr. O’Connell, if he were involved in a family law dispute over assets worth €252,004 would not have to pay ‘millionaire’ level costs, but because this is a business dispute (or indeed a probate dispute, a boundary dispute etc.), he must pay ‘millionaire’ level costs to have his dispute resolved.
14. In any event, all of this means that non-family law disputes, which are not over millions, are nonetheless required to be heard in the High Court, where costs are at ‘millionaire’ 7 Interview with former president of the High Court Kelly P., The Bar Review

(2018)Vol. 23, No. 1, pg. 11: ‘under the current system, as they say, the only people who can litigate in the High Court are paupers or millionaires!’ 8 See Putniene v McDonald [2025] IEHC 682, at para. 2 et seq. 9 Civil Liability and Courts Act, 2004, s.48, 50, 51 and 52, amending, respectively, the: Family Home Protection Act, 1976, s.10

(4); Judicial Separation and Family Law Reform Act, 1989, s.31

(3); Family Law Act, 1995, s.38

(3); Family Law (Divorce) Act, 1996, s.38

(2). 7 levels. Unfortunately, this means that a case like this, regarding a dispute over a sum of €252,004, has ended up, not in the Circuit Court (where costs are likely to be a fraction of the value of the dispute) but in the High Court, where legal costs could be a multiple of the value of the dispute. No lawyer would claim that the legal system should be for the benefit of lawyers to the detriment of litigants, yet as pointed out by counsel for Burke, this is what is happening in this case. 22. Indeed, Burke might not have felt that mediation was so pressing, if this case was being dealt with in the Circuit Court (where costs were likely to be a fraction of the sum in the dispute). However, since the costs in the High Court are likely to be a multiple of the sum in dispute, this is crucial background to Burke’s application to have this Court order the parties to mediate. 23. Thus, the key issue, in this case, is whether this Court has the power to, and should, order the parties to mediate their dispute, in the hope of ending up with the costs of resolving the dispute being a fraction, rather than a multiple, of the value of the claim. ANALYSIS 24. Although Burke’s motion seeks an order ‘inviting or directing the parties’ to engage in mediation, it was clear from the submissions on behalf of Mr. O’Connell on the first hearing date, that he was unlikely to take up an invitation to mediate. Thus, the key issues are: A. whether a court has the power to direct parties to mediate in a debtcollection/contract dispute such as this one; and B. if so, whether this Court should order the parties in this case to mediate their dispute. 8 A. DOES A COURT HAVE THE JURISDICTION TO DIRECT MEDIATION? 25. Before considering whether a court has the power to order mediation generally, and in this particular case, there are some preliminary observations, which might be made. The existence of power to order mediation is separate from the exercise of that power 26. Firstly, it is important to remember that the question of whether a court has the power to order mediation is a separate matter from whether that power should be exercised in a particular case. This is because, just as there are cases which might be regarded as being particularly suitable for mediation (e.g. probate disputes, boundary disputes, employment disputes etc.), there will also be cases where, even if the power to order mediation exists, it may not be appropriate for a court to so order (e.g. where a claim is made that legislation breaches the Constitution or where the parties need to have a legal point determined and many other claims are dependent on that decision). 27. Similarly, if a court is exercising its discretion as to whether to invite (or order) mediation, it is unlikely to do so if the court believes that there is little chance of a settlement, i.e. that a party might simply go through the motions of attending the first day of mediation (and so add to the costs). However, this goes to the exercise of the court’s discretion to order mediation (if such a power exists), and not to whether the power exists in the first place. 28. A related point is that, from the perspective of a court, if a court is inviting (or ordering) mediation, the circumstances of the case are likely to be the key factor, in determining whether the court should exercise its discretion, rather than the subjective views of one of the parties regarding the likely success of the mediation. This is because there are many cases, which have settled at mediation, where the parties were adamant, prior to the mediation, that there was no prospect of success.10 10 See for example in in DKH Retail Limited & Ors v City Football Group Limited [2024] EWHC 3231 (Ch), where the party resisting a court-directed mediation stated that mediation was not likely to lead to a settlement. However, after the court ordered mediation, the judgment notes in a postscript that the parties notified the court that they had settled the dispute. 9 29. Thus, it is important to bear in mind that this judgment is not considering whether mediation should be ordered in every case. Instead, it is considering whether in suitable cases, the court has the discretion to order the parties to mediate, which it may or may not exercise. A party can withdraw from mediation at any time 30. Secondly, it is important to remember what court-directed mediation is not, if a power to make such an order exists. It is not an order by a court to the parties to reach a settlement of their dispute. In a case such as this one, a court cannot order the parties to reach agreement on the settlement of their dispute, or dictate the terms of settlement. Rather, one is concerned, in this application, simply with an order by a court requiring parties to engage in a process of mediation. Thus, if a court orders mediation, initial participation in the process is all that is required of the parties; continued participation is not required. Thus, it is important to bear in mind that, even where a court orders mediation, the parties are free to withdraw from mediation at any time. It is the voluntary nature of reaching agreement at mediation, as distinct from voluntarily/compulsorily attending a mediation, which is a key attribute of every mediation. To put it another way, no party should be forced to reach agreement at a mediation, but it is a different matter entirely, as to whether no party should be forced to attend mediation (which is the key issue, in this judgment). The real value of mediation is ‘bringing the parties together’ 31. This observation, on the limited extent of the court order (to mediate), is not, however, intended to understate the value of court-ordered mediation or the chances of it being successful. This is because bringing parties together, for the purposes of a mediation, can create the same synergy as bringing the parties to the ‘steps of the court’ for the purposes of a hearing, which synergy, so often, leads to settlement. As noted by Miles J. in DKH Retail Limited & Ors v City Football Group Limited [2024] EWHC 3231 (Ch) at para. 40: 10 ‘There is also some force in the submission of counsel for the defendant that these are commercial parties with experienced solicitors and that if there was realistically to be a settlement one would have expected it already to have been reached. But that argument does not do full justice to experience, which shows that bringing the parties together through mediation can overcome an entrenched reluctance of parties to negotiate’ (Emphasis added) 32. Having made these preliminary observations, the next step is to consider the factors which are relevant to deciding whether the Irish courts have, in appropriate circumstances, the power to order parties to mediate. (

1. i)Court-ordered mediation could be a better use of court resources 33. A factor in favour of courts having the power to order mediation is that in deciding on allocating court hearings, it is not just the interests of the parties, which must be taken into account, but also the public interest. In this regard, there is a clear public interest in parties mediating their disputes, where possible, before insisting on using court resources (which are paid for out of the public purse). As noted by Charleton J. in the Supreme Court case of Talbot v Hermitage Golf Club [2014] IESC 57, at pg. 16: ‘Courts are entitled, and indeed are required, to foster their resources. This is both a matter of public and private interest. Court resources used in litigation are funded by public money.’ Furthermore, if the mediation is successful, the ‘freed-up’ hearing date will then be available for other litigants. 34. The Supreme Court case of Tracey t/a Engineering Design & Management v Burton [2016] IESC 16 deals with the right of litigants to court time. At para. 45, MacMenamin J. stated: 11 ‘[...] There is a strong public interest aspect to these issues […] As Denham J. pointed out in O'Reilly McCabe v. Minister for Justice, & Patrick Cusack Smith & Co (Agents of Thomas McCabe, Ward of Court & Minor) [2009] IESC 52 at par. 33, the constitutional right of access to the courts, while an important right, is not an absolute one. As a corollary of that right, a court must also protect the rights of opposing parties; the principle of finality of litigation; the resources of the courts; and the right to fair procedures which accrue to each party to litigation, as well as plaintiffs.’ (Emphasis added) On this basis, it seems that there is a strong public interest in taxpayer funded resources only being used where necessary. Thus, if a dispute is likely to be resolved by mediation, that public interest supports a finding that the courts have an inherent jurisdiction to order, in suitable cases, parties to mediate. (
2. ii)Is mandatory mediation a breach of constitutional right of access to court? 35. It seems to this Court that court-ordered mediation does not, per se, breach a litigant’s constitutional right of access to the courts. This is because it is clear, from Tracey v Burton, that just because a person, such as Mr. O’Connell, has this right to court access does not mean that a court, in deciding when to grant that access, cannot take account of the most efficient use of court resources (and so, for example, only fix a trial date ‘after’ court-order mediation has been attempted). Indeed, it seems to this Court that this principle underlies the current practice of the courts requiring litigants, in bullying/harassment claims, to mediate before they are entitled to have their cases listed for hearing (which court practice is considered further below). 36. It is worth noting that despite the existence of mandatory mediation for over twenty years (in the context of personal injuries cases) under s.15 of 2004 Act (referenced below) there 12 has been no finding that this amounts to a contravention of the constitutional right of access to the courts. In this Court’s view, this is because mediations are held in many cases in a matter of days/weeks. For this reason, they are likely to result in only in a short delay, if any, to a litigant’s access to a court hearing. Power under Order 63A to adjourn proceedings for 28 days to consider mediation 37. In this regard, it noteworthy that under Order 63A, rule 69(c)(viii) of the Rules of the Superior Courts, a judge in Commercial Court proceedings can, of her own motion, adjourn proceedings for a period ‘not exceeding 28 days’ to allow the parties time to ‘consider’ mediation. This provision permitting a short delay, when parties are considering mediation, at the instigation of a judge, could not be considered to be a contravention of the right of access to the courts. Similarly, it seems to this Court that a similar short delay for parties to actually engage in mediation at the direction of a court, rather than just consider it, would not contravene that constitutional right. Mediation can lead to a narrowing of issues in dispute 38. In addition, a mediation, if it does not lead to a settlement, will often reduce the issues in dispute and is likely therefore to reduce the legal costs of the trial for the parties themselves.11 Requiring parties to mediate, with the prospect, that at a minimum, this will reduce the issues to be dealt with at the trial, could not, in this Court’s view, amount to a contravention of the constitutional right of access to the courts. Mandatory mediation is not a breach of right to a fair trial under Article 6 of ECHR 39. Finally, in this regard, support for the view that court-ordered mediation does not contravene a litigant’s right of access to the courts is to be found in the judgment of the Master of the Rolls Sir Geoffrey Vos in Churchill at para. 51 et seq. While he was not 11 As noted by Coulston J. in Fitzroy Robinson Ltd v Mentmore Towers Ltd [2009] EWHC 1552 (TCC) at para. 18: ‘I am in no doubt that ADR, even if it had been unsuccessful, would have brought about a considerable narrowing of the issues between the parties. In its absence, the parties adopted diametrically opposed positions in the run-up to the trial.’ (Emphasis added) 13 dealing with the right of access to the courts under the Irish Constitution, he was however dealing with the similar right (to a fair trial) under Article 6 of the European Convention on Human Rights. In support of his conclusion that court-ordered mediation did not contravene Article 6, he stated: ‘[C]ourts regularly adjourn hearings and trials to allow the parties to discuss settlement. It would be absurd if they could not do so simply because one of several parties, for example, resisted the adjournment [...] [I]n controlling its own process, the court can obviously delay resolution of a claim to allow the parties to negotiate, whether they all want to or not.’ (Emphasis added) 40. In this Court’s view, this comment is equally applicable to the right of access to the courts under our Constitution. Thus, a court delaying court proceedings, for court-ordered mediation, even against the will of the parties, would not constitute a breach of the right of access to the courts under the Constitution (or the European Convention on Human Rights). Indeed, just as in England and Wales, judges in this jurisdiction regularly make clear that the right of access to the courts is not unconditional. Courts stop trials on a daily basis to permit parties to talk 41. This is because, on a daily basis, judges will stop trials, of their own motion, and suggest to the parties that they have discussions, whether the parties want to, or not. An example of one such case was a shareholder dispute in a company, in which this Court stopped the trial and required, without the parties’ consent, the three shareholders to engage with each other to see if a settlement could be reached.12 On one level, this could be said to amount to a breach of the parties’ constitutional right of access to the courts, since this Court, of its own 12 See Hickey v Cosgrave (Record no. 2021 6927P) and Kelly v Cosgrave (Record no. 2022 1294P), where after the first week of a trial that was due to last 12 weeks, this Court stopped the trial, of its own motion, and ordered the parties to consider mediation, which intervention led to the settlement of the case. 14 motion, deprived them of their hearing at that stage, to which they were otherwise entitled (albeit that the Court did so, because it felt it was in the parties’ best interests to do so). In line with Vos M.R.’s comments, this type of court intervention is regarded as part of the court’s function. Indeed, it is often the case, that lawyers for the parties will welcome such a direction from a judge, since they can be more effective, when coming from a detached outsider than if a similar suggestion came from the parties or their advisers. 42. For all these reasons, this Court concludes that ordering the parties to mediate (and not just to consider mediation), whether in the context of a bullying/harassment claim or a debtcollection claim (as in this case), does not breach the constitutional right of access to the courts. This is particularly so, when one bears in mind that the court is not directing the parties to reach an agreement, but simply to commence a mediation. Thus, it seems to this Court that a court having a jurisdiction to order parties to mediate, before setting a case down for trial date or indeed at any appropriate stage in the proceedings, does not breach the constitutional right of access to the courts. Mandatory mediation protects constitutional right of access to courts of all citizens 43. Further support, for the conclusion that mandatory mediation does not, per se, breach the constitutional right of access to the courts, is the fact that access to the courts is not solely the right of one citizen, who wants her case heard, but the right of all citizens to court access. Thus, limiting the rights of one citizen regarding his access to the courts (e.g. by requiring mediation before a trial date is allocated) may in fact be protecting the rights of other citizens to have access to the courts. To put it another way, the public interest in using court resources efficiently for all citizens as whole, is a legitimate factor to be balanced against the right of one citizen to have access to the courts when and however he likes. As noted by MacMenmin J. in Tracey v Burton at para. 47: 15 ’A court may, under the Constitution, take whatever proportionate steps are necessary to protect the integrity of its own processes and procedures, and the inherent right of courts, themselves, to manage their own procedures in a manner which balances the rights of litigants with the rights of the public, and other litigants.’ 44. In this Court’s view, one of those steps is a court ordering the parties to mediate (provided that in the circumstances of the case, it is proportionate). 45. It seems to this Court that it is part of a court’s function, in vindicating the constitutional rights of all citizens to court access, that it should only deal with cases, where alternative means of resolution were either not feasible or not successful. Support for this view is to be found in the Mediation Act, 2017 Act (“2017 Act”) (considered below), since the clear import of that Act is that mediation now has a central role in practically all litigation in Ireland, and that it should be the first port of call for resolving a dispute, and litigation as a last resort. To put it another way, if a case could be resolved by mediation, a court ordering it to be mediated should increase court access for those cases which definitively require a court hearing. Indeed, even if a mediation is not entirely successful, the issues in dispute may be narrowed, which will free up court time for other citizens who are seeking to exercise their constitutional right to court access. 46. In this way, rather than a court-ordered mediation being seen as a contravention of one citizen’s constitutional right of access to the courts, it could in fact be seen as an attempt by the courts to protect the constitutional right of all citizens to have access to the courts. 47. For all the foregoing reasons, it seems to this Court that mandatory mediation per se does not breach the constitutional right of access to the courts. The parties still have access to the courts, albeit that they may have to first attempt mediation. 16 (iii) The role of the courts is to try to make the system better for litigants 48. One of the most compelling reasons why this Court believes that a court does have the power to order parties to mediate is because it is the role of the courts, not just to administer justice, but, in doing so, to make the system better for litigants. As noted by Irvine P.: ‘I have always seen it as my responsibility to try to make the system better for the litigant, who must always be kept front and central in the administration of justice.’13 To put it another way, just as any professional has a duty to act in the best interests of the people they serve, it seems indisputable that the role of a court is not just to administer justice, but to do so in the best interests of all litigants. Ordering mediation because it is in the best interest of all parties 49. Thus, if on the facts of a particular case, it would be in all the parties’ interests to mediate, then it sems to this Court that it should be open to the court to oblige the parties to at least attempt mediation. 50. Looking at it a different way, if a judge did not have that power, and had to proceed with the litigation, even though she knew mediation could obviate the need for litigation, this would be akin to a surgeon being obliged to proceed with surgery, and all its attendant risks, even though she believed that non-invasive treatment could avoid the need for surgery. In this Court’s view, a court should be able look at a dispute, which that court is required to resolve, from the position of what is in the best interests of the litigants. After all, in most civil cases (as distinct from criminal cases), the role of the courts is simply to resolve, in many instances an everyday dispute between two private parties. If there is a good chance that a dispute could be resolved (without the stress, risk to reputation, delay and costs of litigation) then, in most cases, this should be attempted, just as if a patient could be healed without the risk, side-effects and stress of surgery, in most cases this should be attempted. 13 Interview with former President of the High Court Irvine P., The Irish Times (6 August 2022). 17 The financial and non-financial benefits of mediation 51. Parties who are litigating (sometimes for the first and only time in their lives) often fail to appreciate the non-financial benefits of resolving their litigation. Quite apart from the years of the litigants’ time, which is wasted and which they will never get back, and for which there is no financial compensation, there is also the stress caused by litigation. Vos M.R. made the following extra-judicial observation: ‘As I see it, dispute is costly. That is not just because lawyers are expensive and courts take time to resolve disputes. It is because of the stress caused by unresolved disputes that people are unproductive at work and in their personal lives it is always proved hard but a reliable figure on the cost of unresolved disputes. But the estimates that have been made sure that resolving civil, family, and [employment] tribunal disputes more quickly and efficiently would save billions. […] Unresolved civil dispute also causes health problems that take people into the health service with depression and other psychological stress. Again, that leads to the double whammy of lack of productivity and additional pressure on public services.’14 (Emphasis added) A judicial statement to similar effect, that mediation is in the best interests of litigants, was made by Hogan J. in Lyons v Financial Services Ombudsman [2011] IEHC 454 at para. 37 that, ‘mediation is a thousand times preferrable to litigation’. 52. This Court agrees with these comments, and for this reason, it seems to this Court that it would be illogical, if the courts, with a duty to keep the interests of litigants ‘front and central in the administration of justice’, did not have the power to direct parties to mediate, in suitable cases. It would be akin to saying that a judge could not intervene to try to prevent a person burning their own house down; after all this is what some litigation can amount 14 Geoffrey Vos, Speech by the Master of the Rolls: The Digital Justice System – an engine for resolving disputes (International Forum on Online Dispute Resolution, Greenwich University, Wednesday 30 April 2025) 18 to, the parties putting a match to their own resources (e.g. a family incurring more in legal costs than the value of the probate). Support for this view is to be found in the case of Elphicke v Times Media [2024] EWHC 2595 (KB) at para. 133, in which McCloud J. ordered the parties to mediate and one of the reasons he gave was to save the parties own money: ‘It has always been the case that dispute resolution (or ADR, or DR) has been important as a means to avoid the use of court and parties resources.’ (Emphasis added) 53. Perhaps the starkest illustration of the destruction, which litigation visits on parties’ resources, is provided by the recent case of Gilvarry v Maher [2024] IEHC 668. Like the current case, this involved yet another everyday dispute, this time a dispute between the beneficiaries of a will. This litigation has led to five written judgments, the most recent of which was delivered by Nolan J. ([2026] IEHC 1257). It seems to this Court to be a case which might have benefited from a court directing mediation (if such a jurisdiction exists). This is because, in the absence of a mediated settlement, this dispute incurred costs of €1.5 million over an estate worth €450,000. Not only is this illogical, it is patently not in the litigants’ best financial interests, as well as being stressful and an enormous waste of their time. 54. For these reasons, in this Court’s view, it would be illogical if a judge did not have the ability to act in the best interests of the parties, and where appropriate, order mediation, provided any such action is proportionate. (
3. iv)‘Prohibitive’ costs of litigation is a factor in favour of mandatory mediation 55. Another factor in favour of a finding that the courts have the jurisdiction to order mediation is the ‘prohibitive’15 cost of High Court litigation. In this regard, since the role of the courts 15 Bourbon v Ward [2012] IEHC 30, at pgs. 39-40, per Kearns P. 19 is to seek to improve the system for litigants, it is no surprise that judges have for decades16 sought to get the Oireachtas to reduce these prohibitive costs. Unfortunately, these calls for a reduction in legal costs have been unsuccessful. Indeed, the Supreme Court has pointed out how a litigant, without means, can use the high level of costs as a form of ‘blackmail’ to force opponents to settle, irrespective of the merits of the case.17 56. The prohibitive cost of High Court litigation is aggravated by the fact that, in contrast to international norms, in Shannon v Shannon [2024] IEHC 291, it was noted that in Ireland we have more High Courts (dealing with the most serious cases at greater expense) than Circuit Courts (dealing with moderately serious cases at less expense).18 This arose because of the 359% drop in the number of District Courts, relative to the number of High Courts and a 54% drop in the number of Circuit Courts relative to the number of High Courts, in recent decades.19 This has led to a dismantling of the usual pyramid structure (i.e. where there would normally be more courts hearing the less important cases at less cost, than courts hearing the most important cases at greater costs). 57. The fact the situation in Ireland is massively out of keeping with international norms is starkly highlighted by the fact that in England and Wales, not only do they have more County Courts (similar to our Circuit Court) than High Courts, they have circa six times more County Courts than High Courts, while in Ireland we actually have more High Courts than Circuit Courts. 58. All of this has resulted in a concentration of civil litigation in Ireland in the ‘prohibitively’ expensive High Court, rather than in the District and Circuit Courts, which may be of benefit to lawyers (who receive High Court fees for cases that could be heard in the District 16 See the cases referenced at paras. 22-26 of Propiteer v Castehaven [2025] IEHC 451. Farrell v The Governor and Company of the Bank of Ireland [2013] 2 I.L.R.M. 183, [2012] IESC 42, para. 4.12. 18 Shannon v Shannon [2024] IEHC 291. 19 ibid at para 14. 17 20 or Circuit Court), but is clearly to the detriment of the citizen who has to pay those costs (and whose interests the courts system is designed to serve). This concentration of litigation in Ireland in the High Court is epitomised by the fact that in Ireland there are five times the number of High Courts, per capita, than in England and Wales.20 59. Since any reduction by the Oireachtas in the costs of High Court litigation, or of a reversal of the concentration of litigation in the High Court, seems unlikely, the courts have to look at other ways to see to improve the system for litigants. Mandatory mediation is at least one means by which the courts can seek to reduce the prohibitive cost of resolving disputes for litigants. This is particularly so for ordinary citizens such as Mr. O’Connell and small enterprises such as Burke. 60. Thus, it seems to this Court that one of the most compelling arguments in favour of a court having the jurisdiction to order mediation is that it enables the courts to seek to reduce the prohibitive costs which are incurred by litigants in resolving their disputes, which is clearly in the best interests of all parties to a dispute. 61. To put it another way, if the situation was reversed, and the costs of resolving a dispute by mediation was hundreds of thousands of euro, with the cost of resolving it by litigation being in the thousands of euro, there would be no financial benefit to litigants, to courtordered mediation. However, because of the ‘prohibitive’ costs of High Court litigation, there is a real possibility of a significant saving accruing to all parties in resolving their dispute, if the courts have the power to order one or more of them to mediate. (
4. v)Litigation is easy to start but not so easy to finish 62. Another factor in favour of a finding that a court has the jurisdiction to order mediation is the fact that litigation is a lot like war, in the sense that, litigation is easy (and relatively 20 ibid at para. 15. 21 cheap) for one person to start. However, what many litigants, who commence litigation, do not realise, is that litigation is not so easy, and it can be very expensive, to end. 63. This is because, just like ending a war, in litigation, the opponent, usually has a say on if, how and when it ends. This is because ending litigation almost inevitably requires agreement between the two fighting parties, as to which party or parties is going to be liable for the High Court costs incurred up to that point. Since High Court costs have been described as ‘prohibitive’, reaching agreement, on which party/parties will be liable for these prohibitive costs, is rarely easy. It is for this reason, that litigation, once started, can end up becoming a Catch-22 regarding its end. An example best illustrates this point. 64. If A and B are involved in litigation over a sum of €80,000, this dispute must be heard in the High Court, as it exceeds the monetary jurisdiction of the Circuit Court, of €75,000. In a lot of litigation, both parties will believe they are in the right. Thus, since A believes he will win, he believes that B will end up paying his legal costs, while B thinks the opposite. On this basis, both parties could very quickly each incur (but not pay) say €30,000 in legal costs in the first year or so of the proceedings, in dealing with pleadings, preliminary court applications, discovery, etc. 65. By the time A and B appreciate that there is a risk, as there is in most litigation, that either one of them could lose, neither one of them may be prepared to ‘walk away’ from the litigation. This is because walking away would involve them being liable for their own legal costs in the sum of €30,000, which may be too high a figure to simply write-off (in the context of a dispute over €80,000). 66. The Catch-22 arises at this stage, before the parties even reach the hearing and the incurring of brief fees. This is because for A or B to find out who will be held liable by a court for the combined legal costs incurred to this stage, of €60,000, the parties will have to go to trial and so incur even more legal costs, say, a further €35,000 each. This means that in 22 order to get a court to determine who is liable to pay the combined legal costs incurred to date of €60,000, over a dispute which is only worth €80,000, the parties will have to jointly spend a further €35,000 each (or a combined sum of €70,000), thus bringing the total combined costs to €130,000. 67. For A therefore, the Catch-22 is, does he decide to ‘walk away’ at this stage of the litigation, before the majority of the costs will be incurred, which means him being liable for €30,000, which is a very significant sum relative to €80,000 in dispute (assuming B is happy to ‘walk away’ also with his liability for €30,000 in legal costs.) In the alternative, does A ‘go all in’ and spend a further €35,000 in the expectation/hope that a court will find B liable for the entire legal costs of €130,000, albeit with the risk that A could be liable for some or all of that amount (all over a dispute worth €80,000). 68. Once A and B are on the merry-go-round of litigation, this is the unenviable position, or Catch-22, in which they may find themselves. Do they take a big hit now on legal costs, or spend even more in the hope that they will get a favourable decision, but with the possibility of a bigger hit later? 69. As legal costs in the High Court are out of proportion to the values of the dispute heard in that court, this example illustrates why a dispute, over a legal issue with a value of €80,000, can become primarily a dispute about which party will have to pay the legal costs of €130,000, and much less about the original legal dispute. Catch 22 - Too expensive to continue litigating but also too expensive to stop litigating 70. This example is relevant to a consideration of whether a court has the jurisdiction to order mediation because it illustrates why, once a party is on the merry-go-round of litigation, it can be too expensive to get off, but also too expensive to stay on – the ultimate Catch-22. This is particularly so because many clients typically do not end up paying for litigation until the end of the process, and so only end up discovering the true costs at that stage, 23 since only then is it clear the amount of those costs, and which party or parties is going to have to pay them. This typically arises because the legal costs of the many pre-trial applications, even before the eventual trial, are invariably ‘reserved’ or treated as ‘costs in the cause’, so that their amount and who is liable to pay them, only gets determined once the trial is over. 71. The Catch-22 situation to which this Court is referring is often exacerbated by the fact that one or both litigants may not believe that it is in their interests to offer/agree to mediate e.g. because they believe it would be a ‘sign of weakness’ or because of their subjective belief that they are guaranteed to win the litigation and therefore not be liable for the prohibitive legal costs. 72. Because of all of this, it can be invaluable for all parties to a dispute to have an outside objective assessment of the dispute by a mediator, and in particular an objective assessment of the costs thereof. Since so much High Court litigation can result in both parties being in this Catch-22 situation, it seems to this Court that facilitating parties to escape from this Catch-22 (which in in the interests of all litigants) is a factor in favour of finding that this Court has the jurisdiction to order mediation in certain cases. Court-ordered mediation can then provide the necessary reality check to the parties who are faced with a Catch-22 choice. (
5. vi)Should parties not enter mediation voluntarily? 73. Perhaps the strongest point against the courts having the jurisdiction to order mediation is the argument that, to have any chance of success, the parties should enter mediation voluntarily. The argument goes that, as one cannot force parties to reach agreement at mediation, the chances of success, at any such mediation, will be increased if the parties enter the process voluntarily. 24 74. This view that ‘[n]o party should be forced to attend mediation’ was expressed by Gilligan J. in Atlantic Shellfish Ltd v Cork County Council [2015] IEHC 570 at para. 18. As this statement was not central to the finding in the case, it was obiter and so it is not binding on this Court. This was because the case did not involve an application for a court-ordered mediation, but rather an application for the court to invite the parties to mediate. The decision of the High Court to refuse to invite the parties to mediate was upheld by the Court of Appeal,21 but it also did not have to decide on the merits of the comments of Gilligan J. that mediation had to be voluntary. 75. The view that mediation was unlikely to be successful, if it was not voluntary, was also the obiter view of Kelly J., as he then was, in Ryan v Walls Construction [2015] I.R. 558, [2015] IECA 214, at para. 16. There, he stated that: ‘[A]ny element of compulsion attendant upon a reference to mediation will certainly not enhance its prospects of success’. Later, at para. 59 he stated that: ‘A court is entitled to bear in mind the poorer chance of success in a mediation which is not undertaken on a voluntary basis.’ 76. It is important to bear in mind that when these views were expressed, mediation was in its infancy in this country. In addition, while it may be true that voluntary mediation has a greater chance of success than mandatory mediation, it is important to remember that, as noted earlier, one of the real benefits of mediation (whether voluntary or mandatory) is that 21 On appeal ([2015] 1 I.L.R.M. 287, [2015] IECA 283) the Court of Appeal upheld Gilligan J.’s refusal to invite the parties to mediate their dispute. As Gilligan J.’s comments were obiter the Court of Appeal did not need to consider whether these comments were a correct statement of the law, although Irvine J., as she then was, did make similar obiter comments that, ‘it is not in dispute that the order sought is a discretionary one and the court can do no more than invite a party to engage in the process of mediation’, under Order 56A of the RSC (which was substituted in its entirety by SI 13/2018 and now sets out the rules of court regarding an invitation to the parties to consider mediation under s.16 of the Mediation Act 2017). 25 it brings the parties together in one location to focus on their dispute and so can lead to settlement, and so with the same effect as the ‘steps of the court’. 77. It is also of note that Kelly J. expressly relied on the view of the Court of Appeal of England and Wales in Halsey, since at para. 15, he stated: ‘Judicial dicta have also underscored the importance of the voluntary nature of the process. For example the Court of Appeal in England in Halsey v. Milton Keynes General and HS Trust [2004] 1 WLR 2002, made it clear that it was of the view that the key to effectiveness of ADR procedures are that they are processes voluntarily entered into by the parties in dispute.’ However, this view is no longer the law in England and Wales, as a result of the decision of the Court of Appeal in England and Wales in Churchill. 78. While it is certainly possible, if not probable, that a court-ordered mediation is likely to have a poorer chance of success than a voluntary mediation, mediations can be successful, even where one of the parties is forced to attend. Indeed, it is the case that in this jurisdiction, even ten years ago, there were contrary judicial views regarding mandatory mediation, since in the Supreme Court case of Fitzpatrick v Board of Management of St Mary’s Touraneena National School & Minister for Education and Science [2013] IESC 62, at para. 10, MacMenamin J. made the obiter statement that ‘there may be cases where [a mediation] process should be mandatory’. 79. Further support for the view that a court has the jurisdiction to order mediation, even though the resulting mediation will not be voluntary, is to be found in the decision of the High Court of England and Wales in DKH. A case where mediation was ordered against a party’s will 80. The DKH case is of particular relevance, as it arose after the decision in Churchill had clarified that the ‘court had power to order unwilling parties to engage in alternative 26 dispute resolution’ (at para. 29). It concerned an application by DKH for an order obliging the owners of Manchester City FC (the City Football Group) to mediate their dispute over sponsorship of the club’s jersey. City Football Group objected to the application. At para. 31 et seq, Miles J. referenced some of the factors which support a finding that a court can order mediation (some of which have been referenced already), which are equally applicable in this jurisdiction, but which are nonetheless worth setting out in some detail at this juncture: ‘[A]nother important aspect of the overriding objective [of ADR] is to ensure that the court’s resources are properly allocated not only to the parties but to other court users. [...] mediation has worked in complex and entrenched disputes, including where the ADR process appeared to be unlikely to succeed and where one or other party believed that he or she had a strong case. [DKH] said that […] there are several variables in the dispute between the parties which might allow an out-of-court compromise (and which might not be available in a judgment of the court). [..] there has been no mediation to date, although there had been unsuccessful settlement negotiations. The parties are about to incur hundreds of thousands of pounds of further costs. A short, sharp, mediation one day before the end of December may well allow the parties to avoid at least some of those costs. This would also potentially save court time and resources. Counsel for [City Football Group] submitted that, while there was no dispute about the power of the courts to order mediation, it should only do so where there was a realistic prospect of such success. He submitted that this was not such a case. On the contrary, both parties wanted their position to be judicially determined […] He said that this 27 needs to be determined and that his client is entitled to a judicial determination of that question. He submitted that mediation was not realistically likely to lead to settlement. [...] Counsel for [City Football Group] also submitted that it is very late in the day to seek the order, that the parties have already spent hundreds of thousands of pounds, and that the trial is imminent. He also says that his client had very limited availability for mediation […]’ (Emphasis added) 81. Having considered these submissions, at para. 38 et seq. he stated: ‘[I]n many cases the parties' positions in the litigation are diametrically opposed and it may easily be said that each party requires a judicial determination. But nonetheless the parties come through ADR to recognise the desirability of settling for less than their strict legal rights and compromising their positions. Experience shows that mediation is capable of cracking even the hardest nuts. The process sometimes succeeds in cases where the parties appear at first to have intractable differences. Here, as [DKH] said, everything would be up for grabs at a mediation, […]. The claimants are also right to say that the dispute is self-contained and that a mediation would be able to focus on possible solutions rather than raking over historical grievances. I see some force in [City Football Group’s] submissions that it is late in the day to be seeking an order, but it may also be said that there is some advantage in the parties’ positions having been crystallised through pleadings and the service of witness statements. It is indeed sometimes an objection to mediation that it is premature, proposed at a stage when the parties’ positions are unknown. That cannot be said here. There’s also some force in the submission of counsel for [City Football Group] that these are commercial parties with experienced solicitors and that if there was realistically to be a settlement, one would have expected it already to have been reached. But that argument does not do full justice to experience, which shows that 28 bringing the parties together through mediation can overcome an entrenched reluctance of parties to negotiate, even where sincere. The purpose of mediation is to remove roadblocks to settlement. I am unable to accept the submission of [City Football Group] that mediation here has low prospects of success and that adjudication by a court is necessarily required. The range of options available to the parties to resolve the dispute through mediation goes beyond the binary answer a court could provide. There may be solutions other than yes or no. Mediation of this case will be short and sharp, and the documents needed for it would be brief. The defendant did not suggest that mediation would significantly disrupt the parties' preparations for trial.’ (Emphasis added) 82. On this basis, Miles J. ordered the parties to mediate. It is particularly relevant to note that at para. 44 of his judgment, he added the following postscript. ‘Postscript: on 13 January 2025 the parties notified the court that they had settled their dispute’ (Emphasis added) 83. It seems to this Court that the obiter comments of the Irish courts from the last decade regarding mediations being voluntary, need to be read in light, not just of the considerable changes in the law and practice of mediation in the last 10 years, but also cases such as this one. Cases such as DKH (and Churchill), in this Court’s view, provide persuasive support for the view that a court in Ireland has the jurisdiction to order unwilling parties to mediate, in suitable cases, particularly when one sees how, on a daily basis, litigation of even the most intractable kind is being resolved by mediation, in the best interests of litigants. Of course, while entering mediation may not be voluntary, reaching a settlement will always be voluntary. 29 84. Next it is proposed to consider the significant number of statutory provisions, practice directions and court practices which, in this Court’s view, are examples of, and support a finding that, the Irish courts having the jurisdiction to order mediation. (vii) Court ordered mediation in personal injury cases: s.15 of 2004 Act 85. The first of these is s.15

(1)of the 2004 Act. This section could be described having introduced a sea-change in the role of mediation in the Irish courts and in dispute resolution generally, since it provided for the first time in Irish law for court-ordered, or mandatory, mediation. The section states: ‘

(1)Upon the request of any party to a personal injuries action, the court may – (

1. a)at any time before the trial of such action, and (
2. b)if it considers that the holding of the meeting pursuant to a direction under this subsection would assist in reaching a settlement in the action, direct that the parties to the action meet to discuss an attempt to settle the action, and a meeting held pursuant to a direction under this subsection is in this act referred to as a “mediation conference”.

(2)Where the court gives a direction under subsection

(1), each party to the personal injuries action concerned shall comply with that direction.’ (Emphasis added) Of course, the first point to note about this section is that mandatory mediation is only available, pursuant to this section, where one of the parties applies for same and that it only applies to personal injury actions.

1. Nonetheless, for present purposes, the significance of this section is it that it clarifies that, under Irish law there is nothing wrong in principle with parties being ordered by a court to mediate their dispute, and thus to be ordered by a court to incur the costs of mediation. 30
2. Other statutory provisions (and court practices), which will be considered next, point more clearly to the existence of the court’s inherent jurisdiction to order mediation in nonpersonal injury actions. (viii) Solicitors obliged to advise clients to consider mediation: s.14 of 2017 Act
3. The first of these other provisions is s.14 of the 2017 Act, as it introduced dramatic changes to the role of mediation in all litigation in Ireland. The extent of the change is evident from the fact that these provisions take the, almost unprecedented, step of interfering in the solicitor/client relationship. It does this by mandating what legal advice, regarding mediation, a solicitor must give her client. The section states, insofar as relevant, that: '

(1)A practising solicitor shall, prior to issuing proceedings on behalf of a client— (

1. a)advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings, (
2. b)provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services, (
3. c)provide the client with information about— (
4. i)the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and (
5. ii)the benefits of mediation […]

(2)If a practising solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted shall be accompanied by a statutory declaration made by the solicitor evidencing (if such be the case) that the solicitor has performed the obligations imposed on him or her under 31 subsection

(1)in relation to the client and the proceedings to which the declaration relates.

(3)If the originating document referred to in subsection

(2)is not accompanied by a statutory declaration made in accordance with that subsection, the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor concerned to comply with subsection

(1)and provide the court with such declaration or, if the solicitor has already complied with subsection

(1), provide the court with such declaration.

(4)This section shall not apply to any proceedings, including any application, under (

1. a)section 6A, 11 or 11B of the Guardianship of Infants Act 1964, (
2. b)section 2 of the Judicial Separation and Family Law Reform Act 1989, or (
3. c)section 5 of the Family Law (Divorce) Act 1996.’ (Emphasis added) 89. This very significant change in the law brought about by this section means that before issuing proceedings, a solicitor is obliged to advise her client on the merits of mediation and to advise her client to consider mediation as an alternative to litigation to resolve the dispute. One realises just how central mediation now is, to litigation and dispute resolution, when one considers that this obligation applies to any ‘issuing [of] proceedings’ and therefore prima facie applies to all litigation in Ireland (with only a few exceptions set out in s.14[4]). 2017 Act makes clear that mediation is first port of call and litigation is a last resort 90. The importance which the Oireachtas now attaches to mediation is also clear from the fact that it has provided, in s.14

(3), that the courts have, in effect, no discretion, if a solicitor fails to confirm, by statutory declaration, that she advised her client to consider mediation 32 as an alternative to litigation. The gravity of such a failure, in the eyes of the Oireachtas, is such that the court must adjourn the proceedings (‘shall adjourn the proceedings’). Since the High Court has observed that ‘mediation is a thousand times preferrable to litigation’, it seems that the Oireachtas is, in effect, saying the same thing in s.14 of the 2017 Act, i.e. it requires every potential litigant to consider mediation as the first port of call for the resolution of a dispute, and litigation as a last resort. 91. As previously noted, the Supreme Court in Tracey v Burton made clear that the constitutional right of access to the courts is not absolute. S.14 constitutes one such restriction on the right of access to the courts, since a prospective litigant must first be advised to consider mediating, rather than litigating, her dispute. The fact that this is a restriction on access to the courts is clear because a litigant, who has not been advised of the benefits of considering mediating (in the prescriptive manner set out in s.14) is not entitled to have access to the courts. 92. In light of s.14, it is no exaggeration to say that today mediation has been placed front and centre in every case which is taken in the Irish courts, with few exceptions. This is a very different situation from only 10 years ago and it seems to this Court that this is a further factor in favour of a finding that court-ordered mediation is one of the discretionary powers, which a court possesses to facilitate the resolution (or indeed narrowing of issues) in disputes between litigants. (

1. ix)Court practice of requiring mediation in bullying and harassment cases 93. The next legislative provision/practice which supports the view that the Irish courts have the jurisdiction to order mediation is the current practice of the High Court in relation to bullying/harassment cases. In this regard, it is significant to note that, while s.15 of the 2004 Act provides that, on the application of one party in a personal injury case, a court 33 can order mediation, the practice in relation to one category of personal injury cases (bullying/harassment cases) goes further than this statutory provision. This is because that court practice requires the parties to mediate, irrespective of whether either party requests same. 94. This is because the Legal Diary, in relation to Personal Injuries cases, provides that, in relation to all bullying and harassment cases that mediation is effectively, now mandatory, save for good reason. The relevant section of the Legal Diary dated 20 May 2026 states: ‘Personal Injuries Actions arising from allegations of bullying and or harassment. Upon application for a trial date the case must be identified as one arising from such allegations. No case shall be listed for trial unless and until the parties have been to Mediation save for good reason’. (Emphasis added) 95. As this practice direction is not made ‘upon the request of any party’, it clearly is not grounded in the statutory power under s.15 of the 2004 Act. In this Court’s view, the only logical conclusion that one can draw therefore is that this power of the courts to direct mediation in these cases is to be found in the inherent jurisdiction of the courts to order mediation as part of its power to control its own process in the interest of the efficient administration of justice. Alternatively, this power could be said to derive from the power of a court to give directions for the conduct of proceedings which appear convenient for the ‘determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs’, which is the language use in Order 63 of the Rules of the Superior Courts, referenced below. In either case, this court practice is support for the view that a court has, and currently exercises, an inherent jurisdiction to order mediation as part of its power to control its own process, in the interests of the efficient administration of justice. 34 If inherent jurisdiction to order mediation in bullying case, why not in other cases? 96. The question then arises, if a court has the inherent jurisdiction, in bullying/harassment cases, to require mandatory mediation, save for good reason, why not in other cases such as a family case, a probate case, a neighbours’ dispute, or indeed a debt collection case? In this Court’s view, the answer is that it does have that jurisdiction. (
2. x)Obligation to mediate before non-jury cases are set down for trial: HC 127 97. The next statutory provision/practice direction which supports the view that the courts have the jurisdiction to order mediation is Practice Direction HC 127 dated 19 June 2024. This Practice Direction provides yet further evidence of the importance which courts now attach to parties mediating, before a court will assign a trial date. At para. 6 of that Practice Direction, it provides that, where any party to litigation seeks a trial date in the Non-Jury List in the High Court, they are required to complete a Trial Summary Form, before they can obtain that date. This form requires, as a pre-condition to the parties getting a trial date, that they confirm, ‘whether there have been any attempts to settle/mediate the dispute’. 98. While not requiring mediation, this practice direction nonetheless highlights yet another example of the increasing importance which the judiciary now attaches to parties mediating their dispute before they seek a trial date, and so could be said to provide some support for the existence of a jurisdiction to order mediation. (
3. xi)Quasi-mandatory mediation in clinical negligence cases: HC 131 99. The next statutory provision/practice direction which supports the view that the courts have the jurisdiction to order mediation is Practice Direction HC 131 dated 8 April 2025. While Practice Direction 127 (regarding Non-Jury trials) simply requires information regarding 35 whether attempts have been made to mediate the dispute, Practice Direction HC 131, in relation to clinical negligence cases, goes considerably further. 100. This is because para. 5(
4. d)of the Practice Direction HC 131 could be said to be provide for mandatory mediation, at least, in some cases. It states that: ‘After the case has been set down for trial, any party to clinical negligence proceedings may, on giving 28 days' notice to all affected parties, apply for a date for trial provided the following conditions are satisfied and confirmed in writing by a Certificate of Compliance signed by their solicitor or, if unrepresented, by the party making the application: [...] d. Mediation i. As a condition of applying for a trial date, the applicant must provide an undertaking to offer mediation to the opposing party or parties within three weeks of the date on which the trial date is fixed, to engage in such mediation within six weeks of the offer being accepted and, in the event that the initial offer is not accepted, to engage in mediation within six weeks of any subsequent offer of mediation made by the opposing party or parties prior to trial. ii. For the avoidance of doubt, the undertaking required by paragraph 5(d)(
5. i)of this Practice Direction shall be taken to require the applicant and the opposing party or parties to engage constructively in any such mediation and to comply with all reasonable directions of the mediator, including the timely provision of position papers, legal submissions, or other documents in accordance with the timeframe specified by the mediator. 36 iii. The requirements of paragraph 5(
6. d)will not apply to an applicant who has satisfied the court that mediation will not assist the parties in achieving settlement.’ (Emphasis added) It is important to note the practical effect of this practice direction. Thus, if the party seeking a trial date is not interested in mediation (but say her opponent is), this practice direction means that the party seeking the trial date is, effectively, subjected to a mandatory mediation, against her will. This is because to get a trial date, she must offer to mediate with, in this example, someone who wishes to mediate. 101. Again, it is to be observed that the jurisdiction of the court to, effectively, require an applicant for a trial date to mediate against her will is not to be found in s.15 of the 2004 Act (which limits mandatory mediation to situations where one party applies to court for same). 102. Once again, the only logical conclusion that one can draw therefore is that the existence of this practice direction is further support for the view that a court has, and currently exercises, an inherent jurisdiction to order mediation as part of its power to control its own process in the interests of the efficient administration of justice. (xii) Cost sanctions under the 2015 Act for unreasonable failure to mediate 103. Another statutory provision, which provides compelling support for the view that the Irish courts have the power to order mediation is s.169

(1)of the 2015 Act. This section, like s.14 of the 2017 Act, is another illustration of the importance which the Oireachtas now attaches to the role of mediation in all litigation (and not just personal injuries litigation). This is because this section entitles the courts to take account of an unreasonable refusal of a party to mediate, when deciding on costs. The section, insofar as relevant, states: 37 ‘

(1)A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including— […] (

1. g)where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.’ (Emphasis added) A section in very similar terms is contained in the 2017 Act, since s.21 of that Act states: 'In awarding costs in respect of proceedings referred to in section 16, a court may, where it considers it just, have regard to— (
2. a)any unreasonable refusal or failure by a party to the proceedings to consider using mediation, and (
3. b)any unreasonable refusal or failure by a party to the proceedings to attend mediation, following an invitation to do so under section 16

(1).’ (Emphasis added) 104. These provisions apply to all litigation and so not just to personal injuries or bullying/harassment claims. Thus, they allow the court to, in effect, financially penalise a party who unreasonably fails to mediate. In this regard, it is to be noted that the requirement in the bullying/harassment court practice is to require meditation, ‘save for good reason’ which is almost identical to this requirement that parties mediate unless it is reasonable not to do so (if they wish to avoid the risk of a costs penalty). 38 105. It seems to this Court that 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. It would be akin to saying that a court can order a party to pay damages for failing to comply with a contract, but the same court cannot order the party to comply with the contract. 106. Furthermore, since the power to penalise a party for failing to mediate applies in all cases, it seems to this Court that logically, the power to order mediation, save for good reason, also applies in all cases (and so not just in personal injury cases, pursuant to s.15 of the 2004 Act). 107. To put it another way, if, after a case is resolved, a litigant can, in effect, be told by a court that it should have mediated, and because it did not mediate, it will receive less costs, surely a court can, during the proceedings, do the obvious and order the parties to mediate? It seems to this Court that it would defy logic if a court could only penalise a party, when it was too late, but could not prevent the negative effects of failing to mediate (in the best interests of all parties), by actually ordering mediation. S.169 of the 2015 Act is therefore a further factor in favour of a finding that this Court has the jurisdiction to order mediation. (xiii) The extent of financial penalty courts impose for mediation failures 108. Another factor, in favour of finding that a court has the power to order mediation, is the sheer extent of the financial penalty, which a court can impose on a party for failing to mediate, pursuant to s.169 of the 2015 Act. The extent of that penalty is clear from the case of Byrne & Ors v Arnold [2024] IEHC 308. 109. This was a case where there was not a failure to mediate, but rather simply a failure of a solicitor to advise a client about mediation, as required by s.14 of the 2017 Act. In that case, Kennedy J. had to deal with the failure by a solicitor to provide the statutory declaration of compliance with s.14 of the Mediation Act 2017. Even though this was not 39 a failure to mediate, but simply a failure by a solicitor to provide a statutory declaration that he had advised the plaintiff about mediation, this was sufficiently serious to have very significant cost implications. 110. This is clear from the fact that the party, which had failed to supply the statutory declaration, ended up with a 5% reduction of his costs. In addition, there was a clear indication from the High Court that in future cases this percentage might well be in the region of 10-15%. 111. Since this costs penalty applies to practically all litigation, one can see therefore that the High Court is, in effect, stating that mediation occupies such an important role in all litigation, that the failure to even confirm that a client was advised to consider mediation instead of litigation, is regarded as such a serious omission, that the costs could be reduced by up to 15%. 112. In addition, it is important to appreciate the extent of the financial penalty that this involves. For example, if High Court costs for a particular case were €500,000, which is not out of the ordinary, a 15% reduction would mean a €75,000 penalty. Thus, this could be the penalty for a solicitor issuing proceedings, without first advising a client to consider mediation, instead of litigation. If the High Court can retrospectively apply costs penalties, in the tens of thousands of euro (which it now can) for a party failing to provide evidence that mediation advice was provided, it would seem even more illogical, if a court could not prospectively order parties to mediate, which mediation is likely to cost considerably less than this sum. (xiv) Should a party be forced to spend money on mediation against her will? 113. Another argument that is made against mandatory mediation is that it imposes the unnecessary cost of mediation on an unwilling party. 40 114. Firstly, however, it should be noted that this argument has not been recognised as a barrier to the courts requiring parties in personal injuries litigation to mediate under s.15 of the 2004 Act. 115. Secondly, in the context of all litigation (and not just personal injuries cases), under the 2015 Act a court can impose a financial cost, by means of a negative costs order, on a party who unreasonably refuses to mediate. For example, in Mascarenhas v Karim [2022] IECA 48, at para. 279, the Court of Appeal financially penalised a party that unreasonably refused to mediate. In that case, the court noted that a 10% reduction in the appellant’s costs, that it would have otherwise granted, did not apply due to the appellant’s refusal to engage in mediation. It is clear therefore that there is nothing wrong in principle with a litigant being, in effect, told by a court that it should have mediated, and because it did not mediate, it will receive less costs. It logically follows that there could also be nothing wrong, in principle, with a court obliging a party to spend costs on mediation (the effect of court-ordered mediation). 116. Thirdly, and more generally the clear message in the 2004 Act, the 2015 Act and the 2017 Act is that the Oireachtas expects all litigants to engage in mediation, where it is reasonable to do so, notwithstanding that they will have to incur costs in doing so. It is difficult to see therefore how the fact that an unwilling party has to incur mediation costs, which may not be recoverable, if ordered to mediate, would be a reason to conclude that a court does not have the jurisdiction to order mediation. (

1. xv)Court power to order experts to try to agree issues: Order 63A 117. Another statutory provision which supports the view that the Irish courts have the power to order mediation is Order 63A of the Rules of the Superior Courts. This is because, like with mandatory mediation, this provision entitles a court to oblige litigants to seek to reach 41 agreement with their opponents. This provision is therefore support for the view that there is nothing wrong, in principle, with a court ordering parties, at their own expense, to seek to reach agreement on issues between them. This Order applies to commercial proceedings (with an equivalent rule for certain non-commercial proceedings in Order 63C). Rule 5 of Order 63A states: ‘A Judge may, at any time and from time to time, of his own motion and having heard the parties, give such directions and make such orders, including the fixing of time limits, for the conduct of proceedings entered in the Commercial List, as appears convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings.’ (Emphasis added) Rule 6 goes on to provide that one of the directions that a judge can make is a direction to the experts engaged by the parties to seek to reach agreement, since it states: ‘[A] judge may [..] of his own motion […] give any of the following directions[..] (
2. ix)directing any expert witnesses to consult with each other for the purposes of: (
3. a)identifying the issues in respect of which they intend to give evidence, (
4. b)where possible, reaching agreement on the evidence that they intend to give in respect of those issues, and (
5. c)considering any matter which the Judge may direct them to consider, and requiring that such witnesses record in a memorandum to be jointly submitted by them to the Registrar and delivered by them to the parties, particulars of the outcome of their consultations; provided that any such outcome shall be not in any way binding on the parties;’ (Emphasis added) 42 118. Thus, the High Court, in commercial proceedings, has the power to require experts (acting on the instruction of each party) to meet to seek to reach agreement on issues between the parties (at the expense of the parties) with a view to facilitating a quicker and cost-effective end to the proceedings. 119. It seems clear from the wording of Rule 5 (i.e. the use of the terms ‘expeditious’ and ‘minimise costs’) that the power, under Rule 6, of a court to order experts to seek to reach agreement is intended to save on court time dealing with matters that could/should be agreed by the parties. 120. In this Court’s view, as a court has the power to order parties’ experts to meet to seek to agree issues (at the cost of the parties), in the interests of efficiency and costs, it would be illogical if it did not also have the power to order the parties themselves, to try to reach agreement on issues, at their own expense, in the interests of efficiency and costs. Thus, this provision supports a finding that a court has the jurisdiction to order parties to mediate. (xvi) Obligation on parties to try to agree discovery before getting a hearing date 121. Further support for the principle that the courts have the jurisdiction to order parties to mediate to seek to agree all issues in dispute (or, at least, to seek to narrow the issues in dispute) is to be found in the current practice in commercial proceedings regarding parties seeking a hearing date for a discovery motion. 122. The practice in question is that before the parties are given a date for the hearing of a discovery motion, they are required to meet to seek to agree the terms of any discovery order. It seems to this Court that the power of the court to make such orders arises from the power of the court to control its own process in the interest of the efficient administration of justice. The existence of this power therefore provides support for the existence of a very similar power, namely the power of a court to direct mediation, similarly rooted in the 43 power of the court to control its own process in the interest of the efficient administration of justice. (xvii) Invitation to mediate is without prejudice to other powers: s.16 of 2017 Act 123. The final statutory provision/practice, to which this Court will refer, which supports a finding that a court has the power to order mediation, is s.16 of the 2017 Act. It states: ‘

(1)A court may, on the application of a party involved in proceedings, or of its own motion where it considers it appropriate having regard to all the circumstances of the case: (

1. a)invite the parties to the proceedings to consider mediation as a means of attempting to resolve the dispute the subject of the proceedings; (
2. b)provide the parties to the proceedings with information about the benefits of mediation to settle the dispute the subject of the proceedings.

(2)Where, following an invitation by the court under subsection

(1), the parties decide to engage in mediation, the court may— (

1. a)adjourn the proceedings, (
2. b)make an order extending the time for compliance by a party with rules of court or with any order of the court in the proceedings, or (
3. c)make such other order or give such direction as the court considers necessary to facilitate the effective use of mediation[…]

(5)The power conferred by subsection

(1)is without prejudice to any other discretionary power which the court may exercise at any time during the course of proceedings with a view to facilitating the resolution of a dispute.’ (Emphasis added) 44 124. While this section only empowers a court to ‘invite the parties’ to consider mediation, it is worth noting that this Act, which deals with mediation generally, specifically states, in s.16

(5), that this power to invite parties to consider mediation is without prejudice to any other discretionary power which the court may exercise with a view to facilitating the resolution of a dispute. In this regard, reference has already been made to numerous discretionary powers of the courts to facilitate the resolution of a dispute, such as the power of a court to order parties in bullying and harassment cases to mediate. As previously noted, the existence of this discretionary power in those cases, without a statutory basis, supports a finding that there is a discretionary power to order mediation in all cases. 125. For this reason, in this Court’s view, the reference in s.16

(1)of the Mediation Act, 2017 only to invitations to mediate, cannot be interpreted as implying that a court, of its own motion or on the application of a party, does not have the jurisdiction to order mediation – particularly in light of the explicit reference in s.16

(5)to this power being without prejudice to the court’s other discretionary powers. Indeed, in this Court’s view, an order for mandatory mediation would fall within the inherent jurisdiction of the court to control its own process, in the interest of the efficient administration of justice and/or as an order which appears ‘convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise costs ‘pursuant to the terms of Order 63A rule 5 for commercial proceedings or Order 63C, rule 4 for chancery and non-jury actions. (xviii) The Churchill case

1. Further support for the view that this Court has the jurisdiction to direct parties to mediate their dispute is to be found in the Churchill case. Although this judgment of the Court of Appeal of England and Wales is not binding on this Court, the finding therein, that a court has the jurisdiction to order mediation in suitable cases, is persuasive authority. 45
2. In that case, the Court of Appeal of England and Wales held that a statement regarding mediation in Halsey v. Milton Keynes General and HS Trust [2004] 1 WLR 2002 (which had been relied upon by our Court of Appeal in Ryan v Walls Construction [2015] IECA 214 at para. 15) was obiter. The statement in question was made by Dyson L.J. and was that: ‘[T]o oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court’ In Churchill, Vos M.R. explained that this statement was not central to the decision in Halsey, since this statement was not a ‘necessary step’ in the court’s ultimate decision (which was whether a refusal to mediate in Halsey was reasonable). This meant that the Court of Appeal in Churchill was free to depart from that ‘obiter’ statement in reaching its decision as to whether a court could order a party to mediate.
3. The Court of Appeal in Churchill then went on to hold that a court has the power to order parties to engage in non-court-based dispute resolution proceedings. In support of this conclusion, Vos M.R. set out several reasons, which it is relevant to set out in some detail. He stated at para. 59: ‘In Halsey, the Court of Appeal said at [9] that, even if the court had jurisdiction to order unwilling parties to refer their disputes to mediation, they found “it difficult to conceive of circumstances in which it would be appropriate to exercise [that jurisdiction]”. That comment was undoubtedly not part of the essential reasoning of the decision for the reasons given above. Moreover, I would not go so far. Experience has shown that it is extremely beneficial for the parties to disputes to be able to settle their differences cheaply and quickly. Even with initially unwilling parties, mediation can often be successful. Mediation, early neutral evaluation and other means of noncourt-based dispute resolution are, in general terms, cheaper and quicker than court- 46 based solutions. Whether the court should order or facilitate any particular method of non-court-based dispute resolution in a particular case is a matter of the court’s discretion, to which many factors will be relevant. […] As a matter of legal principle, in my judgment, the court can properly regulate its own procedure so as to stay proceedings or order the parties to proceedings to engage in any non-court-based dispute resolution process. I have no doubt, however, that the characteristics of the particular method of non-court-based dispute resolution process being considered will be relevant to the exercise of the court’s discretion as to whether to order or facilitate it.’ (Emphasis added)
4. At paras. 51-58, he stated: ‘[...] At one extreme, courts regularly adjourn hearings and trials to allow the parties to discuss settlement. It would be absurd if they could not do so simply because one of several parties, for example, resisted the adjournment [...] [...] in controlling its own process, the court can obviously delay resolution of a claim to allow the parties to negotiate, whether they all want to or not. Likewise, the court can, in my judgment, control its own process, by staying or delaying any existing proceedings whilst any other settlement process is undertaken. Access to lawyers, payments of costs and the status of any mediator or decision-maker in such processes all go to the exercise of the discretion as to whether to grant such a stay, not to the power itself. Thirdly, I do not agree that [Deweer v Belgium

(1980)2 EHRR 439] compels the conclusion that directing the parties to engage in a non-court-based dispute resolution process would, in itself, be regarded by the ECtHR as an unacceptable restraint on the right of access to the court (see [9] in Halsey). [...] 47 Fourthly, the more recent cases in both the ECtHR and the CJEU that I have cited above support the propositions that I have already enunciated, namely that the court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made: (

1. a)does not impair the very essence of the claimant’s right to a fair trial, (
2. b)is made in pursuit of a legitimate aim, and (
3. c)is proportionate to achieving that legitimate aim. Fifthly, Mr Churchill’s suggestion that these cases only applied to statutory non-courtbased processes is, in my judgment, wrong. [...] Sixthly, Mr Churchill relied on Peters v. East Midlands Strategic Health Authority [2009] EWCA Civ 145, [2010] QB 48 (Peters) at [41] [...] The case says nothing about whether or not parties can or should be required, in the context of existing legal proceedings, to engage with any specific kind of non-court-based dispute resolution process […] I would conclude that, as a matter of law, the court can lawfully stay existing proceedings for, or order, the parties to engage in a non-court-based dispute resolution process.’ (Emphasis added) 130. At paras. 64-65, Vos M.R. stated: ‘The court can stay proceedings for negotiation between the parties, mediation, early neutral evaluation or any other process that has a prospect of allowing the parties to resolve their dispute. The merits and demerits of the process suggested will need to be considered by the court in each case. […] The court should only stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is 48 proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.’ 131. It seems to this Court that all of this reasoning is equally applicable in this jurisdiction to support a finding that Irish courts have the jurisdiction to order parties to mediate, since, for example, just as was the case in Churchill, Irish courts also, ‘regularly adjourn hearings and trials to allow the parties to discuss settlement’, and Irish courts, ‘can obviously delay resolution of a claim to allow the parties to negotiate, whether they all want to or not’ etc. Why therefore shouldn’t an Irish court, like the courts in England & Wales, also be able to adjourn hearings, or delay trial dates, to allow parties to comply with a direction to mediate? (xix) Is the administration of justice not simply applying the law as it is? 132. Finally, a broader objection to a finding that this Court has the power to order mediation, even in a case where the parties are, in effect, ‘burning their house down’, is that if the Oireachtas wanted the courts to order mediation, it would have empowered them to do so, instead of only empowering the courts to do so in personal injury cases (under s.15

(1)of the 2004 Act). 133. This argument goes that, since it is the role of the courts under Article 34.1 of the Constitution to administer justice (‘[j]ustice shall be administered in courts established by law by judges[...]’) and under Article 15.2.1° the role of the Oireachtas is to make laws (‘[t]he sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.’), it follows that it is not the role of the courts to grant itself powers (by finding that it has the inherent jurisdiction to exercise them) such as the power of a court to order mediation. 134. On one level this is a plausible argument, since judges are not elected and they should not be involved in law making. However, in this Court’s view, this judgment outlines the 49 reasons why, although the 2004 Act does not extend to non-personal injury cases, this Court believes that nonetheless, there is an inherent jurisdiction to order mediation. In essence, it is because of (

1. i)the very limited nature of the power in question and (
2. ii)the limited effect of the resulting orders. Thus, the power which this Court is saying trial courts have, to order mediation is, at its core, simply an order to attempt mediation. Similarly, it is important to emphasise the limited effect of such an order (i.e. it is likely to delay court access, if at all, by only a matter of days or weeks). For this reason, just as adjourning a hearing to allow the parties to have settlement discussions would not be regarded as a power of a court, which requires legislation, this Court does not believe that delaying the giving of a trial date, or adjourning a hearing, while ordering parties to mediate (in suitable cases) requires legislation. To avoid injustice court-ordered mediation may be required 135. If anything, it seems to this Court that Article 34, which requires the courts to administer ‘justice’, and so to seek to reduce injustice for all litigants, supports a finding that courts have the power to order mandatory mediation, in suitable cases. This is because if the task of the courts is to administer justice, could it really be said to amount to ‘true’ justice for a person, for example, with a dispute over €16,500 to have to spend a multiple of that amount22 to resolve that dispute (particularly if there is no prospect of recovering those costs, if successful.23 Yet court ordered mediation might avoid, or at least limit, the injustice which such disputes can cause. 22 See for example the decision in Putniene v McDonald [2025] IEHC 682, where the claim (pursued in the Circuit Court) was for circa €16,500 and it was estimated that the costs could be €50,000 (see para. 2). 23 James Street Hotel Ltd v Mullins Investment Ltd & Ors [2022] IEHC 549. See paras. 1-3, 6-8, 22, and 24-27. 50 (
3. xx)Inherent powers of court to ensure that the courts operate efficiently 136. Further support for the view that a court has the inherent jurisdiction to order parties to mediate, and that making such orders does not amount to courts legislating in breach of the separation of powers, is to be found in the recent Supreme Court decision of Kirwan v Connors [2025] IESC 21. At para 145 of his judgment, Hogan J. found that the power of a court to strike out cases for want of prosecution and/or delay derived from, amongst other things, ‘a general inherent jurisdiction’ which is ‘necessary to make the administration of justice effective or to conserve and protect it against abuse’. At para 164, he noted that: ‘[I]t is necessarily implicit in Article 34.1 that the courts have a duty to ensure that the administration of justice operates in an efficient and effective manner. This in turn means that they must be necessarily clothed with powers designed to make that jurisdiction effective and to protect the administration of justice against abuse.’ (Emphasis added) Similarly, it seems to this Court, that another inherent power of a court, to ensure the efficient and effective operation of the courts, is the power to require parties to mediate. This is because one of the primary reasons to use court-ordered mediation is to foster scarce court resources and so to ensure that the administration of justice operates in an efficient and effective manner. Thus, it seems to this Court that this power to order mediation falls four-square within the principle contained in Kirwan v Connors. 137. That case is also authority for the view that, in order to support a finding that a court has an inherent power to make the administration of justice more efficient, reliance can be placed on any tacit recognition of that alleged power by the Oireachtas. This is because at para. 147, to support the existence of the inherent jurisdiction of a court to strike out proceedings for delay, Hogan J. relied on the fact the Oireachtas had tacitly recognised the existence of that jurisdiction in s.3 of the Statute of Limitation (Amendment) Act, 2000. 51 138. Similarly, the finding of the existence of an inherent jurisdiction to order mediation can be supported by the tacit recognition by the Oireachtas of a power of a court to order mediation in all civil disputes. As already noted, that tacit recognition is contained in s.169

(1)(

1. g)of the 2015 Act. This is because the grant by the Oireachtas to the courts of a power to penalise parties in costs, in all civil disputes, for failing to mediate could be regarded as tacit recognition by the Oireachtas of the existence of the power of the courts to order parties to mediate in all civil disputes. Conclusion regarding the existence of the jurisdiction to order mediation 139. For all the foregoing reasons, this Court concludes that a court has the jurisdiction to regulate its own process, by exercising its discretion to order litigants to mediate their dispute. However, before exercising this jurisdiction, there should be a prospect of the resolution of that dispute or a narrowing of the issues in dispute. In addition, any such order must be proportionate, in the sense of not delaying unduly any party’s constitutional right of access to the courts (should the mediation be unsuccessful), and it must be proportionate to achieving the legitimate aim of settling the dispute fairly and at reasonable cost. Ordering mediation on application of parties or on a court’s own motion? 140. Finally, in this regard, it is to be noted that the foregoing reasons, in support of the existence of the power of a court to order mediation, are equally applicable whether a court orders the mediation of its own motion, or one of the parties seeks the court-ordered mediation. 141. For this reason, just as mandatory mediation in bullying and harassment cases, is exercised independently of the wishes of the parties, so too, it seems that a court has the power to order parties to mediate, even if both parties object to such an order (albeit that this may be a factor in whether the court will exercise its power in that particular case). 52 142. In this regard, Order 63A, rule 6(b)(xiii) of the Rules of the Superior Courts provides that a judge in Commercial Court proceedings can, of her own motion, adjourn proceedings for a period ‘not exceeding 28 days’ to allow the parties time to ‘consider’ mediation. This provides support for the view that a court, of its own motion, should also be able to require parties, not just to consider mediation, but to mediate. B. DETERMINING WHETHER TO ORDER MEDIATION IN THIS CASE 143. The next issue to consider is whether, in the circumstances of this case, this Court should exercise its discretion to order the parties to mediate their dispute, and in particular, the factors to be taken into account in reaching this decision. The factors in Atlantic Shellfish to be taken into account in exercising discretion 144. Firstly, it seems to this Court to be entirely logical that the non-exhaustive factors which are considered by a court in deciding whether to invite parties to mediate would also be applicable to a decision to order parties to mediate. These factors were set out by Irvine J., as she then was, in Atlantic Shellfish Ltd v Cork County Council [2015] IECA 283 at para. 37: ‘Without attempting to anticipate the potentially wide range of circumstances that might in any particular case be material to the exercise by the court of its discretion on such an application, it appears likely that the court might, in a particular case, potentially be influenced by factors such as:(
2. i)the manner in which the parties had conducted the litigation up to the date of the application, (
3. ii)the existence of any relevant interlocutory orders, (iii) the nature and potential expense of the proposed ADR, 53 (
4. iv)the likely effect of the making of the order sought on the progress of the litigation should the invitation be accepted and the ADR prove unsuccessful, (
5. v)the potential saving in time and costs that might result from the acceptance of an invitation, (
6. vi)the extent to which ADR can or might potentially narrow the issues between the parties (vii) any proposals made by the applicant concerning the issues that might be dealt with in the course of the ADR and (viii) any proposals as to how the costs of such a process might be borne.[...]’ (Emphasis added) 145. It is important to note that the foregoing list of factors was not intended to be exhaustive. For this reason, it is useful to refer to other factors, which were identified in the Churchill case, to be relevant to a court’s exercise of its discretion to order mediation. Other factors relevant to the Court’s exercise of its discretion to order mediation 146. As previously noted, unlike the Atlantic Shellfish case, the Churchill case deals with a court exercising its discretion to order parties to mediate. In this regard, Vos M.R. first pointed out that there is no fixed test to be applied, or list of factors to be considered, and that it will depend upon ‘all the circumstances’ of a given case. At para. 61 he went on to state that: ‘The Bar Council submitted that the following factors were relevant to the exercise of the court’s discretion: (
7. i)the form of ADR being considered, (
8. ii)whether the parties were legally advised or represented, (iii) whether ADR was likely to be effective or appropriate without such advice or representation, (
9. iv)whether it was made clear to 54 the parties that, if they did not settle, they were free to pursue their claim or defence, (
10. v)the urgency of the case and the reasonableness of the delay caused by ADR, (
11. vi)whether that delay would vitiate the claim or give rise to or exacerbate any limitation issue, (vii) the costs of ADR, both in absolute terms, and relative to the parties’ resources and the value of the claim, (viii) whether there was any realistic prospect of the claim being resolved through ADR, (
12. ix)whether there was a significant imbalance in the parties’ levels of resource, bargaining power, or sophistication, (
13. x)the reasons given by a party for not wishing to mediate: for example, if there had already been a recent unsuccessful attempt at ADR, and (
14. xi)the reasonableness and proportionality of the sanction, in the event that a party declined ADR in the face of an order of the Court. He later held, at para. 66., that: […] It would be undesirable to provide a checklist or a score sheet for judges to operate. They will be well qualified to decide whether a particular process is or is not likely or appropriate for the purpose of achieving the important objective of bringing about a fair, speedy and cost-effective solution to the dispute and the proceedings, in accordance with the overriding objective.’ (Emphasis added) 147. At para. 63, Vos M.R. reproduced the following further factors which the plaintiff, Mr. Churchill, argued made the mediation process in that case a disproportionate fetter on his right of access to the court, which factors, Vos M.R. stated (at para. 66), are ‘likely to have some relevance’. While some of these are clearly case-specific, it is nonetheless useful to set them out: ‘[...] (
15. a)there was no neutral third party involved and the claim was dealt with by the manager of the Council’s own knotweed department, (
16. b)no legal advice was available to the claimant, (
17. c)there was no settled written procedure by which it operated, (
18. d)it 55 had no statutory backing, (
19. e)it was a process that had no fixed timescale and might take an open ended amount of time, (
20. f)the limitation period was not suspended during the process, (
21. g)there was no provision for the payment of a claimant’s costs, and (
22. h)there was no express provision allowing for the payment of compensation […].’ (Emphasis added) The factors which Mr. O’Connell says are relevant to exercise of discretion 148. In considering which of the foregoing factors are of particular relevance to the exercise of this Court’s discretion (as to whether, or not, to order mediation), this Court will first consider the objections which Mr. O’Connell makes to this Court ordering mediation (as there is some overlap between the two). (
23. i)Mr. O’Connell is not going to change his views on sum due to Burke 149. The first objection made by counsel for Mr. O’Connell was that Mr. O’Connell had very set views on the dispute and he was not going to change his views. In this Court’s view, this is not a good reason for this Court to refuse to exercise its discretion to order mediation. This is because this objection misunderstands the whole purpose of mediation. It is not to change a party’s mind as to his/her legal rights. This is because the purpose of mediation is not to concentrate on the parties’ respective rights and obligations, but rather on whether there is any possibility of a resolution of the dispute. In truth, this dispute could be settled at mediation, without Mr. O’Connell ever having to change his views on the amounts due. Accordingly, this objection is not a reason for this Court to refuse to order mediation. 56 (
24. ii)Mr. O’Connell has incurred a significant amount of legal costs to date 150. As the case is already 10 years old, it is perhaps no surprise that counsel for Burke has submitted that ‘legal costs have spiralled out of control’. Mr. O’Connell objects to mediation on the grounds he has already spent a lot of money on legal costs. His counsel gave, as a key reason for Mr. O’Connell not being agreeable to mediation, the fact that the ‘parties have already been put to the expense of, for example, discovery’. It seemed therefore Mr. O’Connell was saying that, as significant costs had been incurred to date, there was no question of him entering mediation. Presumably this is because a mediator does not have power to order one party to pay another party’s legal costs incurred to date and he wants Burke to be ordered to pay his costs by a court (assuming of course Mr. O’Connell is successful) 151. This appears to this Court to be the Catch-22 problem, to which reference has already been made, where litigants cannot afford to stop litigating, but they also cannot afford to continue litigating. 152. This Court empathises with the predicament in which both parties appear to find themselves, particularly as it is caused by the prohibitive cost of High Court litigation. Since the courts have no role in reducing these prohibitive costs (as their calculation is set by the Oireachtas). All the courts can do is to seek to find some way in which the parties can get out of this Catch-22 situation and reduce their exposure to those costs. 153. The objection that the parties have already spent a lot on legal costs has been referenced already. It is the Catch-22 situation to settling litigation, since it can be too expensive to stop litigating but also too expensive to continue litigating. For this reason, the fact that a party has spent a lot of money on legal costs, while far from ideal, is not a reason for a court to refuse to order mediation, and for the parties, instead, to spend more money on legal costs in order to determine who is liable to pay the total legal costs at the end of the case. 57 154. The better approach to this Catch-22 situation is for the two parties, who have both gone to ‘considerable legal expense’24 is to instead get a reality check (from a mediator) whether it is wise to incur even more legal costs (perhaps even more than the value of the claim), with both parties assuming that the other party will lose and so will be the one paying those legal costs. This is because as noted by Miles J. in DKH, mediation provides a range of options for the resolution of the dispute which go way beyond the yes/no answer which a court must provide. Thus, this objection by Mr. O’Connell is not a good reason for this Court to refuse to order mediation. (iii) There has been delay in suggesting mediation, as case is ready to go to trial 155. Mr. O’Connell objects to the application for a court-ordered mediation being made so late in the process. However, this is not a valid reason for this Court not to order mediation. This is because, in this Court’s view, there is no optimum time for the parties to go to mediation. This is because, as already noted, the reputational damage resulting from a trial, may be prevented or reduced by mediating, even after a trial has commenced. Similarly, a successful mediation on the eve of, or even during a trial, can lead to a reduction in stress for the parties and a reduction in the loss of their time (particularly when an appeal is always possible). Accordingly, just as it is never too early to go to mediation, and thereby settle a case at the very earliest stage, it is also never too late to go to mediation. 156. In this regard, it is to be noted that the previously referenced High Court practice of requiring mandatory mediation in bullying/harassment cases, and this practice of requesting information regarding mediation in the context of non-jury cases, both arise when the parties are ready to seek a trial date. Crucially, this is the very point where the 24 Affidavit of 26 November 2025 of Burke’s solicitor at para 6. 58 proceedings are at in this case. These two court practices therefore support the view that it is not too late in the day for court-ordered mediation in the current case. 157. It is also to be noted in the DKH case at para. 39, it was argued that the application for court-ordered mediation was ‘very late in the day’ as ‘the parties have already spent hundreds of thousands of pounds’ and ‘the trial is imminent’. However, in that case, the English High Court held that being ‘late in the day’ may actually be an advantage for mediation, and indeed it was pointed out that objection can often be taken on the basis that mediation is premature. Similarly, this Court does not believe that this objection by Mr. O’Connell is a sufficient reason for this Court not to order the parties to mediate. 158. In any event, a suggestion was made by Burke of mediation (prior to its most recent suggestion and the issue of its motion), albeit that it was made in conditional terms and was made very early in the process, some 10 years ago. In this letter dated 5 April 2016 it had stated: ‘[Burke] is happy to have the matter heard by a competent and recognised Mediator and will accept the Mediators findings in relation to its fees on condition that the Mediation is concluded within a relatively short period of say 2 months.’ 159. Thus, this Court does not believe that the fact that the application for mandatory mediation by Burke to this Court was made, when the case is ready to go to trial, is a reason for this Court to refuse to order mediation. (
25. iv)Only one party willing, so mediation is ‘not necessarily going to be successful’ 160. It is true that it would be preferable if both parties to the proposed mediation approached it voluntarily, rather than one party being in favour and one against. However, as noted by Miles J. in DKH, experience shows that sometimes the most intractable disputes (and so where one or both parties do not wish to go to mediation) sometimes end up being resolved. 59 For this reason, while the attitude of the parties is being taken into account by this Court, in the exercise of its discretion, the fact that one party is unwilling to mediate is not a good reason, on its own, for this Court to refuse to order mediation. (
26. v)Mediation will create additional expense, rather than saving money 161. It is true that there will be additional expense, which will have to be incurred by the parties, if they are ordered to mediate. Indeed, it is possible that if the mediation is unsuccessful (and also if the mediation does not narrow the issues in dispute), the mediation process will end up costing the parties money, rather than saving money. 162. As is clear from Atlantic Shellfish and Churchill, the cost of mediation is an important factor to be considered by a court when deciding to invite/order mediation. It is self-evident that a court should not order parties to incur the additional costs of mediation, unless a full settlement (or narrowing of the issues in dispute) is, at the very least, possible. Otherwise, a court would be ordering parties to incur costs needlessly, which would not be in the interests of the parties. 163. Similarly, if the additional expense of mediation is considerable relative to the future legal costs that might be saved, then a court might only order mediation if it felt that there were other non-financial benefits such as a saving of time (particularly if an appeal was likely or possible), a saving of stress, a saving to the parties’ reputations etc., which justified such an approach. 164. However, the objection, in the form expressed by Mr. O’Connell, that mediation will cost him money but will not save any money, is incorrect. This is because it is unknown, whether or not any mediation will be successful. Thus, this objection is not a reason for this Court to refuse to order mediation. However, the broader point, underlying this objection, 60 regarding the relative cost of the mediation is an important factor in this Court’s exercise of its discretion. This will be considered next. Key factors in the exercise of Court’s discretion in this case 165. Having considered each of the factors set out in the caselaw and those set out by Mr. O’Connell, it is now proposed to consider what this Court believes to be the most important other factors relevant to the exercise of its discretion in this case. (
27. i)The relative costs of engaging in mediation in this case 166. One of the most important factors is the costs of appointing a mediator. This is because, unlike inviting parties to consider mediation, if a court is ordering parties to mediate, one is dealing with a greater cost being incurred by the litigants, i.e. the cost of appointing a mediator, rather than simply the costs of considering whether to appoint one, as well as the costs of attending the mediation. 167. In this regard, it is not the costs of the mediation per se, but those costs relative to the costs of the proceedings (including a possible appeal) which it is hoped to save, which will be key in determining whether a court orders mediation. To put it another way, where the costs of mediation (say, in the thousands of euros) are minor relative to the legal costs which could be saved (say, in the hundreds of thousands of euro), this will be a factor in favour of court-ordered mediation. 168. In this case, there was evidence and uncontroverted submissions of future legal costs which suggested that they could come to several hundreds of thousands of euro, and likely to exceed the value of the dispute. Thus, this Court has little hesitation in agreeing with counsel for Burke that the amount of legal costs which could be saved, relative to the costs 61 of the mediation, is an important factor in support of this Court exercising its discretion to order mediation. (
28. ii)Would ordering these parties to incur costs of mediation be proportionate? 169. It is clear from both Tracey v Burton and Churchill that requiring parties to mediate must be a proportionate order in all the circumstances of the case. It seems clear that costs are one aspect of proportionality. To put it another way, if this dispute were one, where the legal costs might be, say only in the thousands of euro, it might not be proportionate to order the parties to incur tho