The prominence of mediation in Irish litigation has taken a further step forward with the delivery of a landmark High Court judgment in J Burke & Associates Limited v O’Connell [2026] IEHC 314 (PDF 314 KB) confirming the power of the Irish Courts to direct parties to mediate and the issue of a new Practice Direction HC141 emphasising the importance of mediation and compliance with statutory obligations arising under the Mediation Act 2017. Both developments carry important implications for parties engaged in or contemplating commercial litigation. 

Judgment overview

In this judgment delivered on 20 May 2026, Mr Justice Twomey considered whether a Court can order parties to mediate a dispute against their will, or whether a Court is restricted to simply inviting the parties to mediate. As the Court noted in its judgment, this question is relevant to every civil dispute that is heard in the Irish Courts because of the central role which mediation plays in the resolution of disputes.

In the Burke proceedings, the underlying dispute involved a claim by an engineer for unpaid fees of €252,004 arising from services provided to a farmer in connection with litigation over his lands. The dispute had resulted in ten years of High Court litigation. Based on the Court’s experience of High Court legal costs, it seemed possible that the losing party might have to pay €300,000 or more in total costs to resolve a dispute worth €252,004.

Counsel for the plaintiff applied for an order directing the parties to mediate, acknowledging that if the case went to trial “there is going to be no winners apart from the lawyers”. Ultimately, the defendant agreed to mediate on a conditional basis prior to the hearing, but the Court went on to consider whether it possessed an inherent jurisdiction to order parties to attempt mediation.

In doing so, Mr Justice Twomey held that the Irish Courts do have the power to order litigants to mediate their dispute (including in a non-personal injuries context). Mr Justice Twomey set out a list of factors which support this conclusion that the Irish Courts hold such a power to include, the public interest in parties mediating their disputes where possible before insisting on using taxpayer-funded Court resources, the role of the Courts to make the system better for litigants, mandatory mediation does not contravene the constitutional right of access to Courts, mediation can lead to a narrowing of issues in dispute (even if there is no settlement) and mandatory mediation is not considered a breach of a right to a fair trial under Article 6 of the ECHR. The Court also had regard to the relevant statutory provisions including the Mediation Act 2017.

Critically, the Court emphasised that Court-directed mediation is not an order to reach a settlement. A party is free to withdraw from mediation at any time; it is the voluntary nature of reaching agreement at mediation, as distinct from voluntarily attending a mediation, which is a key attribute of every mediation.

The Court held the circumstances of a case will likely be the key factor in determining whether the Court should exercise this power rather than the subjective views of the parties of the likely success of the mediation. The Court outlined that before exercising its power to order litigants to mediate, there should be a prospect of the resolution of the dispute or a narrowing of the issues in dispute.

In addition, the Court held that any such order must be proportionate, 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. The Court observed that the mere existence of its power to order mediation may itself be an incentive for parties to mediate, rather than waiting for a Court order to compel parties to do so.

The judgment is notable not only for its conclusion that the Courts have an inherent jurisdiction to order parties to mediate but also for its observations on the structural costs problem in Irish litigation. The Court found that litigation costs were “one of the most compelling arguments in favour of a Court having the jurisdiction to order mediation as it enables the Courts to seek to reduce the prohibitive costs which are incurred by litigants in resolving their disputes”. Legislation provides for very low financial thresholds for cases to be heard in the High Court relative to the level of legal costs in that jurisdiction, meaning that an everyday case need only exceed €75,000 in value to be heard in a Court with what have been described as “millionaire” levels of fees.

Practice Direction HC141

In another notable development, the President of the High Court has issued Practice Direction HC141. The Practice Direction is intended to bring to the attention of practitioners and litigants certain provisions of the Mediation Act 2017 and similar provisions in other statutes to emphasise the need for compliance with such provisions and to flag the potential consequences of non-compliance.

The timing of the new Practice Direction is notable, in that it not only follows the recent judgment in Burke but also other notable judgments in the last two years in Byrne v Arnold [2024] IEHC 308, and V Media Doo & First Click Marketing Operations Management Limited v Techads Media Ltd [2025] IEHC 430 (PDF 635 KB), both of which emphasise the seriousness with which the Irish Courts approach compliance with the Mediation Act 2017 and which are expressly referenced in the Practice Direction.

Of particular note, the Practice Direction highlights the obligations imposed on solicitors by Section 14 of the 2017 Act which requires a practising solicitor, prior to issuing proceedings, to advise a client to consider mediation, to provide information about mediation services and to file a statutory declaration confirming compliance. As the High Court made clear in Byrne v Arnold, a failure to file the required statutory declaration can result in a costs reduction.

The Practice Direction also draws particular attention to V Media Doo & First Click Marketing Operations Management Limited wherein the Court held that the Court must adjourn proceedings where the applicable statutory direction had not yet been filed. This further underlines the public interest in encouraging alternatives to litigation and the need for clients to be properly advised of the benefits of mediation, reinforcing the statutory obligations on solicitors under Section 14 of the Mediation Act 2017.

Key takeaways

Taken together, these developments send a clear message:

• Mediation is no longer simply encouraged – the Courts have the power to order parties to mediate, even where a party is unwilling, where proportionate to do so.
• Solicitors’ obligations under Section 14 of the Mediation Act 2017 are strictly enforced and non-compliance carries real consequences.
• Parties should ensure that mediation is properly considered before proceedings are issued.
• Parties who unreasonably refuse to engage with mediation remain exposed to adverse costs consequences.

We will continue to monitor developments in this area and keep you up to date. In the meantime, if you would like to discuss any of the matters covered in this update in more detail, please get in touch with any member of our Litigation, Dispute Resolution and Investigations Group.

We would like to thank Dorothy Obikoya for contributing to this briefing.