Mediation in Civil Litigation: A Changing Approach

Introduction

The recent High Court decision in J Burke & Associates Ltd v O’Connell [2026] IEHC 314 represents an important judicial development in mediation and civil litigation in Ireland and is one that all civil litigators should take heed of.

In a detailed judgment, Mr. Justice Twomey concluded that the Irish courts have an inherent jurisdiction to direct parties to engage in mediation, even where one or more parties in the action object.

What is Mediation?

Mediation is a form of alternative dispute resolution, where a neutral third party (“mediator”) facilitates agreement between parties to a dispute. Mediation has been given statutory footing in this jurisdiction through the Mediation Act (2017). Mediation is defined in the Act as “a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute.”

Mediation is being utilised increasingly in all forms of litigation, including complex Medical Negligence and Personal Injury matters, as a method of resolving issues at an earlier stage.

J Burke & Associates Ltd v O’Connell – What was the Dispute about?

The case involved a long-running commercial dispute regarding allegedly unpaid engineering fees. However, the real significance of the judgment lies in the Court’s consideration of whether it could compel parties to mediate against their wishes.

Historically, Irish courts have generally “invited” parties to mediate, rather than ordered them to do so. Previous judicial comments suggested mediation should remain voluntary. However, Mr. Justice Twomey found that those earlier comments were not binding and that the legal landscape has changed significantly following the enactment of the Mediation Act 2017 and evolving court practice.

What were the Key Findings?

The Court held that:

• Irish courts have the power to direct parties to engage in mediation in appropriate cases

• Such an order does not breach a party’s constitutional right of access to the courts, provided it is proportionate and does not unduly delay proceedings

• Courts may exercise this power either on the application of a party or potentially of their own motion and

• The power arises from the Court’s inherent jurisdiction to manage proceedings efficiently and proportionately

Importantly, the Court distinguished between compelling parties to attend mediation and compelling them to settle. The judgment emphasised that mediation remains entirely voluntary in outcome, parties can still walk away without agreement.

What are the Practical Implications for Litigants?

While the judgment does not mean mediation will become mandatory in every case, it is likely to strengthen judicial encouragement of alternative dispute resolution going forward.

Parties involved in commercial disputes, Professional Negligence / Medical Negligence claims, Probate matters, Employment disputes and other High Court litigation should now expect increased scrutiny where mediation has not been explored.

The decision also serves as a reminder that a refusal to engage with mediation may carry increased risk in terms of process and costs.

List judges may even refuse to set trial dates for certain proceedings, if mediation has not been attempted.

Conclusion

The decision in Burke v O’Connell may mark a significant shift in Irish civil litigation practice. While the Court ultimately declined to formally order mediation in this case due to developments between the parties, the judgment strongly signals a more active approach by the courts in encouraging early dispute resolution.

For litigants and practitioners alike, mediation is no longer simply an optional “alternative” to court proceedings. It is increasingly becoming the first consideration in any litigation dispute, and a central feature of modern civil litigation in Ireland.

Further Information

For expert legal advice about any civil litigation matter, please contact Partners Ciarán Leavy or Dermot McClean in our award-winning Litigation & Dispute Resolution Team.