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The High Court has delivered an important judgment on the role of mediation in Irish civil litigation. In J Burke & Associates Limited v O’Connell [2026] IEHC 314 (“J Burke v O’Connell”), Twomey J considered whether a court can go beyond inviting parties to mediate and instead direct them to engage in mediation, even if it is against their will. The Court concluded that, in appropriate cases, the courts have an inherent jurisdiction to order parties to mediate as part of their power to control their own process and ensure that proceedings are determined in a manner that is just, expeditious and proportionate.
Background
The case arose from a long-running dispute between an engineering company and a farmer over allegedly unpaid professional fees. The plaintiff claimed €252,004 in respect of engineering services provided in connection with separate litigation involving the defendant’s lands. By the time the mediation application came before the Court, the proceedings had been ongoing for approximately ten years and were approaching trial. A key concern was that the costs of the High Court litigation could exceed, or at least significantly erode, the value of the claim itself.
The plaintiff applied for an order under Order 56A, rule 2 of the Rules of the Superior Courts, section 16 of the Mediation Act 2017 and the inherent jurisdiction of the Court, inviting or directing the parties to engage in mediation. The defendant initially resisted mediation, relying on factors including the stage of the proceedings, costs already incurred, the perceived lack of prospects of settlement, the delay in suggesting mediation and the fact that the matter was ready to go to trial and the risk that mediation would add to costs rather than reduce them.
Importantly, the Court drew a clear distinction between ordering parties to attend or commence mediation and compelling them to settle their dispute. Twomey J emphasised that court-directed mediation does not require parties to reach agreement. It requires participation in a process. Settlement remains voluntary, and parties remain free to withdraw from mediation. This distinction was central to the Court’s conclusion that mandatory attendance at mediation does not, in itself, undermine the constitutional right of access to the courts.
The Court’s conclusion
The Court held that Irish courts have jurisdiction, in appropriate cases, to direct parties to engage in mediation. That jurisdiction was found to arise from the Court’s inherent power to regulate its own process in the interests of the efficient administration of justice. The Court considered that such a direction may be made where there is a prospect that mediation could resolve the dispute or narrow the issues, provided that the order is proportionate and does not impair the parties’ right of access to the courts.
On the facts, the Court considered that this was an appropriate case for court-directed mediation. The proceedings had been ongoing for over ten years, significant costs had already been incurred and further costs were likely to be substantial meaning there was a real possibility that legal costs could overshadow the sum in dispute. The Court also took account of the potential saving of two weeks of court sitting time.
However, the Court did not ultimately make the proposed order to mediate; shortly before the adjourned hearing, the defendant’s solicitor wrote indicating that the defendant would agree to mediation on a conditional basis. In light of that development, the Court encouraged the parties to pursue an agreement to mediate without the need for an order, while making clear that it considered the case one in which a direction to mediate would otherwise be appropriate.
Wider context: mediation, costs and civil justice reform
The significance of J Burke v O’Connell lies in how it reflects the increasingly central role of mediation in Irish civil litigation, and its alignment with wider reforms aimed at addressing cost and proportionality.
The Mediation Act 2017 established a comprehensive statutory framework to promote mediation as an alternative to court proceedings, with the stated aim of reducing costs, improving efficiency and encouraging earlier resolution of disputes. This Act embeds mediation at multiple points in the litigation process. Section 14 requires solicitors, prior to issuing proceedings, to advise clients to consider mediation and to confirm that advice by statutory declaration, in the absence of which proceedings must be adjourned to ensure compliance. Section 16 empowers the court to invite parties to consider mediation and to facilitate that process, while preserving the court’s broader powers to promote resolution of disputes. Section 21 further reinforces this framework by permitting the court, in awarding costs, to take account of an unreasonable refusal to consider or attend mediation following such an invitation. Taken together, these provisions position mediation not as an optional adjunct to litigation, but as an integral part of how civil disputes are expected to be managed.
That statutory framework operates alongside the costs regime under section 169 of the Legal Services Regulation Act 2015. Section 169(1)(g) permits the court, when deciding costs, to have regard to whether the parties were invited by the court to settle the claim, whether by mediation or otherwise, and whether one or more parties were unreasonable in refusing to engage in settlement discussions or mediation. In J Burke v O’Connell, Mr. Justice Twomey treated that provision as part of the wider statutory context supporting the court’s jurisdiction to direct mediation in an appropriate case.
Against that backdrop, the Court’s analysis in J Burke v O’Connell of the “Catch‑22” of High Court litigation is notable. Twomey J highlighted the practical reality that litigation may become too expensive to continue but equally too expensive to abandon, particularly where costs risk exceeding the value of the claim. The judgment treats mediation as a means of breaking that cycle, either by resolving the dispute or by narrowing the issues in a way that reduces the cost and duration of any eventual trial. The Court also noted that mediation offers the parties an opportunity to obtain a “reality check” in respect of the dispute from a mediator.
More broadly, the decision sits within the current civil justice reform context. The Department of Justice published the General Scheme of the Civil Reform Bill 2025 in January 2026, which includes measures concerning judicial review, a new production of documents regime, and increased monetary limits for the District and Circuit Courts, with the stated aim of reducing delay and litigation costs.
Viewed in that context, J Burke v O’Connell is not simply a development in mediation jurisprudence. It is part of a broader movement away from a purely party-driven model of litigation and towards a system in which the courts play a more active role in ensuring that disputes are resolved in a manner that is proportionate, cost-effective and consistent with the efficient use of court resources.
Practical implications
For litigants and practitioners, the practical message remains clear. Mediation should be considered early, revisited as the case develops and treated as part of litigation strategy rather than a procedural formality. A refusal to mediate may already carry costs consequences under section 169 of the Legal Services Regulation Act 2015 and section 21 of the Mediation Act 2017.
Following J Burke v O’Connell, parties should also be aware that, in an appropriate case, the court may direct mediation before allowing the case to proceed further. The judgment does not mean that mediation will be ordered in every case. The Court was careful to emphasise that the existence of its jurisdiction is separate from the exercise of that jurisdiction. Parties to litigation need to be mindful that the Court may have regard to several factors including the nature of the dispute, the stage of the proceedings, the costs already incurred and the likely future costs as against the value of the dispute, the potential saving of court time, whether mediation could narrow the issues, and whether an order would be proportionate.
This article was co-authored by Knowledge Lawyer, Melanie Ardiff.
Gerald Byrne, Partner
