order the parties to incur thousands of euro in mediating their dispute (unless for example, there were other reasons, e.g. the likelihood of an appeal with considerably more costs, or indeed the non-financial benefits of mediating).
\n170.
\nHowever, where, as in this case, the dispute is in the High Court where the costs, which are yet to be incurred for the trial (and a possible appeal), are likely to be in the hundreds of thousands of euros, directing the parties to incur the costs of mediation is a proportionate order. Burke’s solicitor provided sworn evidence of the legal advice that he and counsel had provided to Burke, since she averred that: ‘both Counsel and I have advised [Burke] to engage in mediation with [Mr.
\nO’Connell] with a view to reducing further legal costs and, if possible, coming to a satisfactory outcome to both sides.’ This was not contradicted by Mr. O’Connell and there was no other evidence, or indeed submissions, provided by Mr. O’Connell to suggest that ordering mediation would not be proportionate to the circumstances of this dispute. Thus, this is a factor in favour of this Court exercising its discretion to make such an order.
\n62 (iii) Logic suggests that the parties should attempt mediation 171.
\nIn addition, this is a case where the legal costs of resolving the dispute, are likely to be in excess of the value of the dispute. As averred to by Burke’s solicitor: ‘I am concerned that legal fees may overshadow any award of this Honourable Court so, ultimately, both parties may lose out in the end’. (Emphasis added) Thus, resolving a dispute over €252,004 might end up costing €300,000 or €400,000 (when both parties costs are included). In any other walk of life, no reasonable person would spend say €400,000 to recover an asset worth €252,004. It defies all logic and is the equivalent of spending €10,000 on the repair of a car worth €6,000. The illogicality of this situation is exemplified by the fact that Burkes’ lawyers were seeking to do themselves out of work.
\n172.
\nThis illogicality of the situation in which the parties find themselves is a compelling factor in favour of this Court exercising its discretion to order mediation. Indeed, courtordered mediation is particularly valuable in these types of disputes, where logic, for whatever reason, goes out the window but where a judge, as a truly objective outsider, can sometimes be in a position to break the log jam in furtherance of both parties’ interests. (iv) Mediation in this case may lead to narrowing of issues in dispute 173.
\nAnother factor to be considered by this Court, in deciding whether to order mediation in this case is the possibility that mediation might narrow the issues in the dispute, and so reduce the legal costs of the trial, even if no settlement is reached at the mediation. In this regard, counsel for Burke submitted that: ‘Even if the parties do not end up solving the matter, I say they should at least be able to resolve certain aspects and agree on certain factors before the court, such as evidentiary issues to reduce the amount of time this will take up of the court’s trial. […] And if we can’t we are hopefully going to try and resolve some matters in the 63 dispute so that they don’t take up as much of the court’s time at trial.’ (Emphasis added) 174.
\nThese submissions, that mediation would be likely to narrow the issues in dispute, and likely to reduce legal costs of any subsequent trial, were not controverted by Mr. O’Connell.
\nAccordingly, it seems to this Court that this is another factor in favour of this Court exercising its discretion to order mediation in this case. (v) Mediation in this case could save court resources 175.
\nIn support of the application for court-directed mediation, counsel for Burke submitted that the case ‘is going to take considerable resources of the court’s time’. In addition, at the first hearing, sworn evidence was provided by Burke’s solicitor that the case: ‘will take two weeks at trial, due to the complexities involved, the professional relationships between the parties over a long period of time (which give rise to the breaches of contract as pleaded which will have to be opened before the Court), the sheer number of documents involved and the number of expert witnesses that need to be called, on both sides, to include subject matter experts/engineers in the property/land/folios involved, accountants/actuaries as to special damages and quantum merit. Regardless this case could take up a considerable amount of this Honourable Court’s valuable time.’ (Emphasis added) At the second hearing, counsel for Burke submitted that his side would be calling nine witnesses and that the case would, in fact, take ‘two to three weeks’.
\n176.
\nCounsel for Mr. O’Connell did not agree with this timeframe as she indicated that her side felt that it would take a maximum of three days.
\n177.
\nHowever, even if one took the mid-point of these two estimates, this case could take up almost two weeks of High Court sitting time. This is a significant amount of court time 64 which could be saved if the parties at least attempted mediation. As there is a public interest in ensuring that court resources are only used, where necessary, this Court believes that this amount of saving of court resources is a compelling factor in favour of court-order mediation particularly since the Oireachtas has made clear (in the 2017 Act) clear that mediation should be the first port of call for dispute resolution. (vi) No restriction on constitutional right of the parties to access the courts 178.
\nIt is relevant to note that there was no suggestion by the parties, that if this Court were to order mediation (and if it were not successful), it would delay to any significant extent, or indeed to any extent, the access of the parties to the courts, or otherwise impair the very essence of the parties’ constitutional right of access to the courts.
\n179.
\nIndeed, it could be argued that if court-ordered mediation were to be successful in this case, this would further the constitutional rights of access of all citizens to the courts, by making up to two weeks of court time available for their hearings.
\n180.
\nFor all these reasons, this Court believes that this case is one where the parties should be ordered to mediate their dispute, in their own interests and in the public interest of the efficient use of court resources.
\nMr. O’Connell’s letter between first hearing date and adjourned hearing date 181.
\nAs already noted, on the first hearing date, counsel for Mr. O’Connell submitted that this Court should not make an order inviting/ordering the parties to mediate. On the 13 March 2026, a few days prior to the second hearing, to consider the possibility of this Court ordering the parties to mediate, Mr. O’Connell’s solicitor wrote to Burke’s solicitor. This letter was opened to this Court towards the end of the hearing on 18 March 2026 and it stated, insofar as relevant, that:
\n65 ‘You might note that in the circumstances, and without prejudice to [Mr. O’Connell’s] denial of any liability, [Mr. O’Connell] will agree to mediation with the costs of the motion to be reserved to the trial (if any) of the action.’ 182.
\nIn light of this letter, at the end of the hearing on 18 March 2026, this Court encouraged the parties to pursue discussions, to see if a final agreement could be reached to mediate, without the need for a court order. However, since this offer to mediate, was conditional on Burke agreeing to the costs of the motion being reserved (and this Court was not told that there was agreement on this issue), it might still be necessary (depending on the outcome of the engagement of the parties) to order the parties to mediate.
\n183.
\nThus, while this Court has concluded that this is a case in which it would be appropriate to order the parties to mediate, in light of the terms of the letter of 13 March 2026, it is proposed not to make such an order, at this juncture.
\nSUMMARY 184.
\nThe Court’s conclusion and the reasons for its conclusions can be summarised as follows:
\nThe courts have the power to order litigants to mediate their dispute 185.
\nThis Court is satisfied that the courts have the jurisdiction, in appropriate cases, to direct parties to engage in mediation. That conclusion is based on the following considerations. • An order of court-directed mediation is a very limited order, since it does not compel settlement. It merely requires parties to commence a mediation process. Thus, while attendance at a mediation might not be voluntary, reaching a settlement at mediation is voluntary. This is because mediation is a consensual process, from which either party can withdraw at any stage. The real value of court-ordered mediation is that 66 like the ‘steps of the court’ it brings parties together to resolve their dispute, and it can, for that reason alone, be a vital ingredient for settlement. • In line with the Supreme Court decision of Kirwan v Connors, the recognition of the existence of the power of a court to order parties to mediate, does not amount to the courts legislating in contravention of the separation of powers. This is because the power to direct mediation it is an inherent power of a court, in order to ensure the efficient and effective operation of the courts. • A direction to mediate does not contravene the constitutional right of access to the courts, since it usually involves no delay, or a very limited delay in the litigation (if the mediation is not successful). In addition, it also serves legitimate objectives such as reducing costs, promoting efficiency and protecting the finite resources of the courts for all litigants (whose constitutional right of access to the courts must also be protected). • Irish law already recognises mandatory mediation since on the application of one of the parties, a court can order mediation in personal injury cases under s 15 of the Civil Liability and Courts Act 2004. • In fact, the current practice of the High Court that no bullying and harassment case is listed for trial ‘until the parties have been to Mediation save for good reason’ is, in effect, court-ordered mediation. Yet this power to order mediation is not derived from s.15 of the 2004 Act, as the order is not made upon ‘the request of any party to a personal injuries action’ as required by that section. For this reason, this practice is an example of the inherent jurisdiction of the courts to order mediation. • There are numerous other inherent powers used by the courts, similar in nature to court-directed mediation, which are examples of the powers of the courts to oblige parties, at their own expense, to engage constructively with opponents in the
\n67 interests of efficiency and keeping costs down, e.g. requiring parties to meet to agree discovery. • Mediation is now front and centre of practically all civil disputes in Ireland, as a result of s. 14 of the Mediation Act 2017. This is because this section requires solicitors to, in effect, advise their clients to consider mediating, instead of litigating, their dispute. In this way, it is clear that the Oireachtas wants mediation, rather than litigation, to be the first port of call for civil disputes, save for good reason. The fact that the courts apply significant financial penalties for any failures by solicitors regarding the provision of this advice illustrates the importance which the courts attach to litigation being the last resort in resolving civil disputes • S.169(1)(g) of the 2015 Act entitles a court to penalise a litigant in costs for failing to mediate in all civil disputes. It would defy logic if a court was able to penalise a litigant for failing to mediate in all civil disputes, but not able to oblige that party to mediate in the first place. It would be akin to a court having the power to award damages if a party fails to comply with a contract but not the power to order that party to comply with the contract in the first place. • Earlier judicial statements to the effect that mediation must always be voluntary were obiter and must be viewed, in light of the foregoing legislative changes, modern court practice, and contravening judicial statements. • The common law does not stand still as it continuously applies existing principles to new challenges and in this regard and there is recent authority from England and Wales, most notably the Churchill case, which confirms that a court has the inherent jurisdiction to order unwilling parties to engage in alternative dispute resolution. • The role of a court is to make the system of resolving disputes better for litigants and to act in the best interests of all parties to litigation. Yet, under the current 68 system, ‘the only people who can litigate in the High Court are paupers or millionaires!’25 In the absence of any meaningful reform by the Oireachtas to the cost of accessing justice in the High Court, the courts should attempt to find some way to provide an affordable way to resolve disputes for those who are neither paupers nor millionaires. This is particularly so in everyday disputes, such as this one, involving individuals and small businesses, which end up in the High Court, but could be resolved by mediation at a fraction of the cost.
\n186.
\nFor all these reasons, it seems to this Court that a court, in controlling its own process, possesses an inherent jurisdiction to order parties to mediate, in appropriate cases. In this Court’s view, such an order can be made if it is intended to ensure that proceedings are determined in a manner that is just, expeditious and proportionate. Thus, it seems to this Court that a court can, of its own motion, or on the application of any of the parties, direct parties to mediate (save for good reason) at any stage of the proceedings. For that purpose, 25 Interview with former president of the High Court Kelly P., The Bar Review (2018) Vol. 23, No. 1, pg. 11.
\n69 a court can stay proceedings, or delay in providing a trial date, until mediation has occurred (save for good reason). Before doing so, the court should be satisfied that there is a prospect of a resolution of the dispute, or of a narrowing of the issues in dispute, and that the courtordered mediation is proportionate and does not impact to any significant degree upon the parties’ constitutional right of access to the courts.
\n187.
\nFinally, it is worth observing that just because a court has the power to order parties to mediate does not mean that this is a power that will need to be exercised regularly. This is because the prospect of such an order may be sufficient to incentivise parties to mediate.
\nIn this regard, it is clear that the prospect of a court order (penalising a party in costs pursuant to s.169(1)(g) of the 2015 Act) has been a powerful incentive for many parties to mediate. Yet, there are some cases where even the prospect of being penalised in costs is not a sufficient incentive to mediate, e.g. where both parties believe that suggesting and/or agreeing to a mediation would be a sign of weakness, or where a party, either has no means or considerable means, such that a threat of costs sanction is meaningless. However, if the courts have the power to order mediation (as this Court believes they have) these litigants will have a much greater incentive to mediate, rather than waiting for an order to do so from a court (of its own motion or on the application of one of the parties).
\nThis Court would order the parties in this case to mediate 188.
\nThe remaining question is whether, in the circumstances of this case, this Court should exercise its discretion to order the parties to mediate. The Court is satisfied that it should do so, for the following reasons. • These proceedings have been ongoing for over ten years, with extensive interlocutory steps, multiple court appearances and a high level of costs already incurred by both parties. In the short-term, there is no end in sight, particularly if an appeal is taken. The parties themselves have been unable to break the logjam, and 70 outside intervention may help reach a resolution of the dispute, or a narrowing of the issues in dispute. • The future costs, including the incurring of significant brief fees, and the costs of a possible appeal, are likely to be substantial and the total costs may exceed the sum in dispute of €252,004. This defies all logic and in contrast, the costs of mediation are likely to be modest by comparison. Accordingly, logic suggests that this type of case should be mediated and only heard in court if mediation is unsuccessful. • This case could take two weeks of court time to hear (not including a possible appeal), which is a very significant amount of time relative to the value of the dispute. There is a public interest in this amount of court time only being expended, where it is necessary (i.e. where mediation has been unsuccessful). • This case exemplifies the Catch-22 of High Court litigation, where litigation can be too expensive to continue, but also too expensive to stop. This makes the involvement of an objective outsider, in the form of a mediator, crucial if there is to be a rational means of escape from this Catch-22, in the best interests of the parties. • There is no evidence before this Court to suggest there is not a reasonable prospect that mediation could resolve the dispute entirely or, at a minimum, narrow the issues, thereby reducing trial length, legal costs and the use of court resources. • Similarly, there is no suggestion that requiring the parties to mediate will delay, at all, or to any significant extent, a future hearing, should the mediation be unsuccessful. Accordingly, this Court does not believe that court-ordered mediation will impact to any significant degree, or at all, upon the parties’ constitutional rights of access to the courts.
\n71 • The fact that the case is ready for trial does not militate against mediation; indeed, the crystallisation of issues through pleadings and discovery could well enhance the prospects of a productive mediation. • The objections raised by the defendant – relating to delay, costs already incurred, additional expense, unwillingness to compromise and doubts as to success – are not, either individually or cumulatively, sufficient to outweigh the benefits of mediation in the circumstances of this case. • Directing mediation is a proportionate procedural step, which preserves both parties’ entitlement to a full judicial hearing if mediation proves unsuccessful, and is consistent with the Court’s obligation to administer justice efficiently while keeping the interests of both parties front and centre.
\n189.
\nFor all these reasons, this Court considers that this is a case in which it would be appropriate to exercise its discretion to direct the parties in this case to engage in mediation, albeit that for the reasons set out at paras. 180-182, it is not proposed to make the order at this juncture. If it becomes necessary to make such an order, the parties have liberty to apply for the purposes of making submissions on the terms of that order.
\n72