Mandatory Mediation: A Milestone Judgment on Court-Directed Mediation

Mandatory Mediation: A Recent Milestone Judgment on Court-Directed Mediation

In what could potentially represent a ground-breaking decision in the Irish litigation landscape, on 20th May 2026, Mr Justice Twomey delivered judgment in the High Court case of J Burke & Associates Limited v Patrick O’Connell[1] (the Burke case).

Significance of the Burke Case

The Burke case marked the first occasion an Irish Court outlined that the Court had an inherent jurisdiction to order the parties to the litigation to attempt mediation in a non-personal injuries context.

The significance of this development is reflected in the definition of mediation in the Mediation Act 2017 (the 2017 Act) as being “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 has undoubtedly become an increasingly popular choice for dispute resolution given the benefits it offers parties, including its confidentiality, flexibility and efficiency as an alternative to the adversarial litigation system, particularly for contentious and multi-party disputes. Prior to the Burke decision, however, the Courts had typically only invited and encouraged the parties to participate in mediation rather than directing them to do so. In considering both the potential jurisdiction of the High Court to order mediation, and the current party dissatisfaction in civil disputes, Mr. Justice Twomey was “satisfied that the courts have the jurisdiction, in appropriate cases, to direct parties to engage in mediation”. 

In this article, we consider:

• the facts of the Burke case;
• the factors Mr. Justice Twomey relied upon in reaching his decision;
• how that decision could affect future cases; and
• the new mediation Practice Direction issued by the Courts Service.

Background Facts

The Burke case arose from a dispute between an engineering firm, J. Burke and Associates, and a farmer, Mr. O'Connell, over unpaid fees of circa €252,000 for engineering services connected with planning litigation against Kilkenny County Council. Crucially, it was clear from the defendant’s submission that he was unlikely to take up an invitation to mediate. After ten protracted years of High Court proceedings, counsel for the plaintiff engineer applied to the Court not merely to invite parties under Section 16 of the 2017 Act, but to direct both parties to mediate.

In a striking submission that echoed the exacting phrase of Mr. Justice Twomey himself in his earlier V Media judgment[2], William McLoughlin BL argued that progressing directly to trial stage would produce “no winners apart from the lawyers”, stating:

"As soon as it is set down for trial the parties are entitled to charge the brief fees. We are trying to reduce legal costs by trying to mediate beforehand, and again I'm not trying to talk myself out of work, but it is in the clients' best interest."

Mr Justice Twomey noted that the case at hand was a typical example of the financial imbalance in many High Court claims and emphasised its relevance to civil disputes in the Irish Courts generally. Save for a potential (and arguably minor) costs adjustment, it was evident that the total costs would ultimately outweigh the sum in dispute, arguably “for the benefit of lawyers to the detriment of litigants”, a point that Mr. Justice Twomey has highlighted in numerous previous decisions.

This common 'small town Ireland’ dispute dynamic, which fills many a slot on the Registrar’s legal diary, was therefore worthy of due consideration by Mr. Justice Twomey. In considering the application by the plaintiff, Mr. Justice Twomey analysed whether the Court has the adequate jurisdiction and discretion to order parties to mediate – that is, to engage in initial participation – whilst retaining their right to reach a voluntary agreement.

Discretion to Direct Mediation?

Mr Justice Twomey considered the two conflicting obiter statements which existed at Irish law up until this point:

• the 2013 Supreme Court judgment in Fitzpatrick v. Board of Management of St. Mary’s Touraneena National School & Anor., which toyed with the suggestion that mediation 'may' be mandatory in certain cases[3]; and
• its contradictory counterpart – the 2015 High Court judgment Atlantic Shellfish v. Cork County Council, which held that 'no party should be forced to attend mediation.'[4]

Mr. Justice Twomey, in considering the foregoing cases, noted that since the previous judgments were delivered, “there have been extensive changes in the law and practice of mediation in Ireland”, as well as significant persuasive developments in England & Wales with the decision of the Court of Appeal in Churchill[5]. Affirming his prior view in V Media, Mr Justice Twomey noted that “Mediation is now front and centre of practically all civil disputes in Ireland, [and] it is clear that the Oireachtas wants mediation, rather than litigation, to be the first port of call for civil disputes, save for good reason.”

Noting the difference between the courts’ power to order and whether the power should be exercised, Mr Justice Twomey held that the appropriateness of mediation to a particular case is crucial to consider, together with the subjective facts of the case. He noted where there is a prospect of resolution of the dispute, or at minimum a narrowing of the issues in dispute, a court-ordered mediation may be a valuable consideration for many reasons.

Prohibitive Legal Costs and Public Protection – the Role of Mediation

Mr Justice Twomey identifies the “prohibitive legal costs” which often prevent the meaningful continuation of civil disputes. He notes that the nature of High Court disputes – too expensive to continue but too expensive to stop – ultimately “can end up becoming a Catch-22...on the merry-go-round of litigation”. Mr. Justice Twomey argues that many High Court litigations are “patently not in litigants’ best financial interests”, and he illustrates the visible destruction of parties’ resources at trial stage.

He also notes the ‘strong public interest aspect’[6] to mediation and recognises the potential for mediation to act as a beneficial, constitutional corollary to the courts’ protection of a publicly funded system. Potential effects such as freeing up hearing dates for other litigants, protecting the taxpayers’ ‘public purse’, and protecting litigants from the financial and psychological ‘destruction’ of prolonged litigation all contribute to the courts’ overarching role to make the system better for citizens.

Legislative Jurisdiction to Order Mandatory Mediation

From a legislative and authoritative standpoint, Mr Justice Twomey also in turn considered the wealth of legislative footings from which an ‘inherent’ discretion to order mandatory mediation can be deduced.[7] He notes the mediation ‘requirements’ already operative: costs sanctions for failure to advise for mediation[8], penalties for unreasonable refusal to engage in mediation[9], and the effective requirement to offer and engage in mediation by way of completion a trial summary form[10], and clearly evidenced the courts’ ability to order mediation as embedded into its practice and procedure.

This broad suite of statutory requirements relating to mediation also received attention by Mr Justice David Barniville, President of the High Court, on 27th May 2026 with the introduction of the new Practice Direction HC141.[11] This Practice Direction appears to both consolidate and emphasise the compliance obligations of the 2017 Act and the practices and procedures of the High Court to date.

Commenced on 3 June 2026, this Practice Direction highlights that mediation can – and should – be engaged and applied in all civil proceedings.[12] When considered in light of Mr Justice Twomey’s judgment (of the same day, in fact), this new Practice Direction demonstrates a clear shift in the High Court’s attitude towards mediation. It appears that complying with the statutory obligations under Section 14 of the 2017 Act in particular is no longer a mere ‘box-ticking’ exercise, and passive engagement will no longer suffice – evidence of active advice and genuine engagement with mediation by parties to a dispute can and will be required.

Summary of the Burke Judgment

In his 72-page judgment, Mr Justice Twomey’s analysis of the advancements in mediation is refreshing. In considering the benefits of effective mediation, he starkly highlights the “prohibitive” legal costs which disrupt most disputes at High Court level. Any party who unreasonably fails, neglects and/or refuses to engage voluntarily in mediation will now have to be mindful of both the prospect that the Court could direct their attendance in view of the Burke decision but would also need to be cautioned that unreasonable refusal to attend could have costs implications, as set out by Mr. Justice Kennedy in the case of Byrne v. Arnold[13].

Mr. Justice Twomey held that an Irish court has inherent jurisdiction to order parties to mediate in all civil disputes and not merely to invite them – even where one or both parties object. He held that besides mediation being “a thousand times preferable to litigation”[14], many cases which have settled at mediation “where the parties were adamant...that there was no prospect of success”, and noted that “the real value in mediation is ‘bringing the parties together’, creating ‘the same synergy as bringing parties to the ‘steps of the court’’.11

He further noted that provided the order is proportionate, does not unduly delay the parties' constitutional right of access to the courts, and is intended to achieve a just, expeditious, and cost-effective resolution, there is no reason – constitutional or otherwise – why the courts could not exercise their discretion in granting an order for parties to mediate to help “overcome an entrenched reluctance”. Mr Justice Twomey inferred that if a court may penalise a party in costs for failing to mediate, it would 'defy logic' if the same court could not order mediation to begin with in terms of the consistency in the objective which the Court was seeking to achieve. Ultimately, Mr. Justice Twomey did not need to make a formal order as, shortly before the hearing, the defendant agreed to mediation on a conditional basis such that the Court encouraged the parties to pursue those discussions, reserving its power to make a formal order only if and when it became necessary to do so.

Conclusion – Mediation now an Essential Dispute Resolution Step

As reinforced by Mr Justice Twomey, considering mediation is ultimately no longer a last resort or a ‘sign of weakness’. It is now, by law and judicial practice, an essential port of call for resolving civil disputes in Ireland for a variety of substantive, procedural and logistic reasons.  

The Burke judgment highlights over a decade of advancements in alternative dispute resolution, and states that courts can and will be prepared to direct parties to the mediation table. It is important to note, however, that this does not mean mediation will be ordered in every case: the Court retains its ever-present discretion and will assess the potential to order mediation on a case-by-case basis.

Overall, if the Burke decision is followed as a binding precedent going forward, the Court’s power will be better established, clearer in nature and will undoubtedly make the incentive to mediate voluntarily, before a court intervenes, much stronger – placing the focus back on to the mediation process itself and thereby facilitating the parties in seeking to achieve a practical resolution of the litigation between themselves, guided by the mediator.