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On 20 May 2026 the High Court delivered a decision in Burke v. O'Connell [2026] IEHC 314 (Burke) in which Mr Justice Twomey held that the Irish courts possess an inherent jurisdiction to order parties, in appropriate cases, to mediate disputes in civil proceedings, even where one or both parties object. On the same date the President of the High Court signed off on Practice Direction (HC141) that emphasises the importance of mediation in dispute resolution, highlights certain provisions of the Mediation Act 2017 (the 2017 Act) and, crucially, reminds practitioners and litigants of the consequences of failing to comply with their obligations under the 2017 Act.
While some ambiguity remains around the extent to which mandatory mediation is likely to become a feature of Irish litigation, these developments underscore that parties to complex commercial litigation should treat mediation as an increasingly important strategic consideration. In particular, litigants need to be mindful that any unreasonable failure to consider or engage in mediation could result in serious costs consequences.
The proceedings
Background
The issue arose in the context of a claim by J Burke & Associates Limited (the Plaintiff), an engineering company, against a farmer, Mr Patrick O'Connell (the Defendant) for €252,004 in engineering fees that had been before the Court for approximately ten years and was ready to be set down for trial. Evidence indicated that the future litigation costs could exceed the value of the claim.
In that context, the plaintiff sought an order ‘inviting or directing’ mediation. The Plaintiff’s motion was grounded in Order 56A, rule 2 of the Rules of the Superior Courts (RSC), section 16(1) of the 2017 Act, and the inherent jurisdiction of the court (the Plaintiff was given leave to add this latter ground to the application).
The Defendant opposed the application on several grounds. These included his fixed views on the sum due, the significant costs already incurred (including on discovery), the lateness of the suggestion to mediate, the fact that only one party was willing to participate, and the additional expense of mediation.
The Court’s decision
The Court first considered whether it had jurisdiction to order parties to mediate. In that context, the Court emphasised the pivotal role of mediation in Irish litigation noting its potential to save time and costs, and, even where unsuccessful, its capacity to narrow the issues between parties and thereby generate efficiencies at trial.
Ultimately, the Court concluded that it had jurisdiction to direct parties to engage in mediation, in non-personal injuries civil matters, as part of its inherent power to regulate its own process, stating “a court, in controlling its own process, possesses an inherent jurisdiction to order parties to mediate.” In reaching that decision, the Court identified a series of factors supporting the existence of this jurisdiction which are considered below.
1. Ensures the efficient and effective operation of the courts
The Court held that an inherent power to compel mediation is necessary to ensure the efficient and effective operation of the courts, relying by analogy on the Supreme Court decision in Kirwan v Connors [2025] IESC 21. In Kirwan, which related to dismissal for want of prosecution, Hogan J held that it was implicit in Article 34.1 of the Constitution that courts must be “clothed with powers” necessary to ensure that the administration of justice operates in an efficient and effective manner. Twomey J. observed that court-ordered mediation in certain situations could be a better use of court resources and in the public interest. This analysis frames court-ordered mediation not as the creation of a new procedural step, but as an aspect of the Court’s existing power to control proceedings to ensure that they are resolved in a manner that is just, expeditious and proportionate.
2. Impact on constitutional rights
On the constitutional question, the Court held that an order to mediate, provided it is proportionate, would not breach the right of access to the courts under the Constitution in light of: (i) the very limited nature of the power in question; and (ii) the limited effect of the resulting orders. In particular, the judgment emphasised the limits of the discretion, namely, compelling participation as distinct from compelling an outcome. On that basis, directing mediation does not of itself offend a party’s constitutional right of access because it affects the timing of access to a hearing, rather than the entitlement to one.
In support of that conclusion, the Court observed that no finding has been made that mandatory mediation in personal injuries cases, as provided for by section 15 of the Civil Liability and Courts Act, 2004 (the 2004 Act) is a breach of constitutional rights. The Court also suggested that court-ordered mediation may itself protect the constitutional rights of all citizens by reserving access to the courts for cases where alternative means of resolution were either not feasible or not successful.
3. Existing statutory provisions and court practice
The Court also highlighted an extensive list of statutory provisions, practice directions and court practices in support of its inherent jurisdiction. In particular, the Court emphasised:
Section 14 of the 2017 Act observing that this legislation makes clear the importance the legislature attaches to mediation and that mediation should be a first port of call and litigation is a last resort.
Section 16 of the 2017 Act noting that section 16(5) of the Mediation Act 2017 provides that the power to “invite” parties to consider mediation under section 16(1) is “without prejudice to any other discretionary power which the court may exercise with a view to facilitating the resolution of a dispute” and therefore expressly preserves the court’s other discretionary powers, including its jurisdiction to direct mediation in appropriate cases.
Costs sanctions referring to section 169 of the Legal Services Regulation Act 2015 and section 21 of the Mediation Act 2017, both of which permit a court to consider a party’s unreasonable refusal to mediate when assessing costs. In the Court’s view, it would “defy logic” if a court could penalise a party for failing to mediate but lacked the power to direct mediation in the first instance
4. Irish and UK caselaw
The Court considered whether parties should enter mediation voluntarily and noted that while it it was possible, if not probable, that court-ordered mediation is less likely to be successful than voluntary mediation, mediations can be successful even where one of the parties is forced to attend. The Court observed that contrary judicial views were expressed by the Irish courts regarding mandatory mediation referring to: (i) Atlantic Shellfish Ltd v Cork County Council [2015] IEHC 570 and Ryan v Walls Construction [2015] IECA 214, and that the view expressed in those cases was that mediation must be voluntary; and (ii) Fitzpatrick v Board of Management of St Mary’s Touraneena National School & Minister for Education and Science [2013] IESC 62 where the Supreme Court commented that there may be cases where a mediation process should be mandatory. However, Twomey J. noted that these statements were obiter and should be viewed in light of subsequent legislative changes and modern court practice.
In reaching his decision, Twomey J. relied on the persuasive authority of the Court of Appeal of England and Wales judgment in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 (Churchill). In that case, the court held that the courts in that jurisdiction can order parties to engage in alternative dispute resolution (ADR) provided that this: (i) does not impair the essence of the claimant’s right to a fair trial; and (ii) is proportionate to achieving the legitimate aim of setting the dispute fairly, quickly and at a reasonable cost. See further detail in a previous ALG insight. Notably, mediation rules in the UK are set out in the Civil Procedure Rules (CPR) and, following the decision in Churchill, the CPR were amended in October 2024 to confirm the courts’ power to compel parties to engage in ADR. Twomey J. also relied on the persuasive authority of DKH Retail Ltd v City Football Group Ltd [2024] EWHC 3231 (Ch) one of the first UK cases in which the High Court in that jurisdiction exercised that power under the CPR in practice.
Should the Court order mediation in this case?
The Court then considered whether it should order mediation. Twomey J concluded this was a case in which it would be appropriate to direct mediation having regard to the age of the proceedings, the scale of future legal costs, the likelihood that those costs could exceed the amount in dispute, the prospect that mediation could narrow the issues, and the public interest in conserving court resources. The Court also observed that such a direction would be a proportionate procedural step. The Court ultimately did not compel mediation in light of the defendant’s subsequent conditional indication of willingness to mediate.
The new practice direction (HC141) on mediation and ADR compliance
On 27 May 2026, the High Court published Practice Direction HC141 (dated 20 May 2026) on Mediation and ADR Compliance which will come into operation on 3 June 2026. This practice direction highlights certain provisions of the 2017 Act and similar provisions in other statutes relating to mediation and ADR. Its purpose is to underscore the importance of mediation and ADR and to remind practitioners and litigants of the potential consequences of non-compliance.
The practice direction emphasises that Part 3 of the 2017 Act imposes significant obligations on practising solicitors in relation to mediation, including the obligation under section 14 to advise clients, prior to issuing proceedings, to consider mediation as a means of resolution, and to advise that participation is voluntary. It also notes that Part 4 of the 2017 Act gives the court an important role in encouraging recourse to mediation, including the power under section 16(1) to invite parties to proceedings to consider mediation. More generally, the practice direction reminds practitioners and litigants that section 6(2) of the 2017 Act makes it clear that participation in mediation is at all times voluntary; and reiterates that any unreasonable refusal or failure by a party to engage with mediation when invited to do so may carry adverse costs consequences even for a party that is ultimately successful in the proceedings.
Conclusion
There is no doubt that the Irish courts consider mediation and other ADR mechanisms as important tools in the resolution of litigation and that parties who unreasonably fail to engage with those mechanisms when invited to do so may face serious consequences. The significance of Burke and Practice Direction HC141 is to emphasise the court’s willingness to turn to mediation as an instrument of active case management. This is likely to be of particular relevance in complex commercial disputes, which are often document-heavy, expert-driven and susceptible to escalating costs. However, it remains to be seen how the decision in Burke will be applied in light of the statutory provisions in the 2017 Act, in particular section 6(2). What is clear is that parties should expect and prepare for heightened judicial scrutiny of any refusal to mediate, with significant potential implications for both case management and costs strategy.
For further information in relation to this topic or any related matter, please contact Enda Hurley, partner, Clare Cashin, partner, Aisling Vaughan, senior associate, Sinéad Hayes, senior practice development consultant, Rachel Kemp, senior practice development lawyer or your usual contact on the Disputes or Construction & Engineering teams.
Date published: 29 May 2026
