knowledge 26 May 2026 |

Mandatory Mediation: High Court confirms power to order mediation in civil proceedings

The High Court (Twomey J) in J Burke & Associates Ltd v Patrick O’Connell (20 May 2026) has confirmed, for the first time in a non‑personal injuries context, that Irish courts possess an inherent jurisdiction to order parties to attempt mediation. Although no formal order issued in the case—because the defendant agreed to mediate on a conditional basis prior to the hearing—the Court set out twenty factors underpinning the jurisdiction and gave guidance regarding how it should be exercised in practice.

The dispute

The underlying claim involved alleged non‑payment of professional fees totalling €252,004 over a decade‑long dispute. The plaintiff sought an order directing the parties to engage in mediation. The core issue was whether Irish courts may compel parties to mediate (as distinct from merely inviting them to consider it).  This was against the backdrop of earlier obiter comments from Irish Courts pointing in both directions: the Supreme Court in 2013 had suggested that “there may be cases where a mediation process should be mandatory”, whereas the High Court in 2015 stated that “no party should be forced to attend mediation”.

The High Court’s conclusion

Twomey J concluded that the courts have an inherent jurisdiction to order parties to attempt mediation, identifying twenty factors in support of such conclusion.  Several themes are evident:

Public interest: There is a clear public interest in mediating disputes, where possible. Therefore, if a dispute is likely to be resolved by mediation, the public interest supports a finding that the Courts have an inherent jurisdiction to order in suitable cases, parties to mediate. 

Constitutional compatibility: A direction to attempt mediation does not infringe the constitutional right of access to the courts.  Just because a person has a 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 (for example only fixing a trial date after court-order mediation). 

Making the system better for litigants:  The court’s role includes improving the justice system for litigants. Given the “prohibitive cost of High Court litigation” and the “merry‑go‑round” dynamic of proceedings, the Court found that having the jurisdiction to order mediation enables the Courts to seek to reduce costs and facilitates an “escape” from the roundabout of litigation where it is too expensive to get off but also too expensive to stay on. 

Practical efficacy: Relying on UK precedent the Court emphasised that even sceptical parties may settle once mediation is attempted.

Support in statutory provisions, practice directions and court practices: The Court also relied on broader statutory and procedural landscape to provide examples of and support a finding that the Irish Courts have jurisdiction to order mediation, including, for example: the mandatory mediation regime for personal injury cases under section 15 of the Civil Liability and Courts Act 2004; the current High Court practice that no bullying or harassment case is listed for trial until the parties have been to mediation “save for good reason”; the obligation on solicitors under section 14 of the Mediation Act 2017 to advise clients to consider mediation before commencing proceedings, and cost sanctions under section 169(1)(g) of the Legal Services Regulation Act 2015 for unreasonable refusal to mediate.

UK Precedent: the Court found significant persuasive support in the 2023 decision of the Court of Appeal of England and Wales in Churchill v Merthyr Tydfil CBC, which confirmed that a court has jurisdiction to order parties to engage in mediation in suitable cases.  

No Contravention of the Separation of Powers: the Court rejected the argument that to grant courts the power to order mediation would be to contravene the separation of powers, given (i) the very limited nature of the power in question and (ii) the limited effect of the resulting orders. The Court emphasised that the power they were recognising was simply an order to attempt mediation, and while entering mediation may not be voluntary, reaching a settlement would always be voluntary.  Further, the Court also relied on the dicta of Hogan J in the 2025 Supreme Court decision in Kirwan v Connors where he referred to “a general inherent jurisdiction” of the Courts which is “necessary to make the administration of justice effective or to conserve and protect it against abuse”.   

The Court noted that before exercising this jurisdiction, there should be a prospect of the resolution of the dispute or a narrowing of the issues in dispute, and any such order should not unduly delay any party’s constitutional right of access to the courts (should the mediation be unsuccessful), and it must be proportionate in achieving the legitimate aim of settling the dispute fairly and at reasonable cost.

The order in this case

Having concluded that the jurisdiction exists, the Court was satisfied the case was appropriate for a direction to mediate. A formal order proved unnecessary because, shortly before the hearing, the defendant agreed to mediation on a conditional basis. The Court encouraged the parties to pursue discussions, reserving its power to make a formal order if and until it became necessary.

Conclusion

Courts can now compel parties, in suitable cases, to attempt mediation. This is a material development outside the personal‑injury context and will influence litigation strategies going forward.  For litigants, unreasonable resistance to mediation now carries a risk of a court order directing mediation and a trial date being fixed only after such court-ordered mediation has been attempted.  Further, the prospect of such an order being made may provide a sufficient incentive for parties to agree to mediate voluntarily. It remains to be seen how the power recognised in this case will be exercised in practice.

Some may argue that the mandatory mediation regime for personal injury cases under section 15 of the Civil Liability and Courts Act 2004 suggests that the inherent power of the Courts to order mediation in suitable cases, was not contemplated by the legislature when the Civil Liability and Courts Act 2004 was enacted.  However, the Court concluded that this regime provides an example of circumstances in which a mandatory mediation regime may be of value and supports its conclusion that the Court has such an inherent jurisdiction.  Appellate guidance may ultimately be required regarding the scope of the inherent jurisdiction in question, in an appropriate case.