Dr Róisín O’Shea

Chair of the IPMO 22nd May 2026

Justice Twomey has issued a ground-breaking judgment this week (May 20th 2026); in J Burke & Associates Limited v Patrick O’Connell [2026] IEHC 314 he sets out the reasons why the courts do have the power to order litigants to mediate their dispute.

Up until this week’s High Court case the law in Ireland was unclear as to whether mandatory mediation (court ordered mediation) was possible beyond the limited scope of s. 15 of the Civil & Liability and Courts Act 2004. In 2013 the Supreme Court stated that:

                  "…there may be cases where [a mediation] process should be mandatory" [1]

However, in 2015 Justice Gilligan in Atlantic Shellfish in the High Court took a different view, stating that:

                  “…[n]o party should be forced to attend mediation" [2]

S. 16 of the Mediation Act 2017 provides that a Court has the power to ‘invite’ the parties to mediate, however, the motion before Justice Twomey was one asking the Court not just to ‘invite’ but also to ‘direct’ (order) mediation.

In considering the question, Justice Twomey noted that since the previous judgments were delivered in 2013 and 2015 that “there have been extensive changes in the law and practice of mediation in Ireland”, and referenced the significant development in England & Wales where the Court of Appeal in Churchill [3] held that a court, in controlling its own process, has the jurisdiction to engage in mediation. 

The case before the Court involved a contract dispute, the non-payment of fees allegedly owed by a farmer to an engineer (Burke) that had resulted in 10 years of litigation. The engineer claiming that € 252,004 in fees were owing. Counsel for Burke outlined to the Court that as the case was now ready to be set down for trial, both litigants were at the point of incurring significant brief fees with their respective counsel; and that in the client’s best interests the Court was being asked to direct mediation to reduce legal costs. The Court noted that Burke’s solicitor in pressing the reason for the application gave evidence that the legal fees may overshadow any award of the Court.

It has long been accepted that mandating mediation does not compel settlement, and where the Court directs the parties to mediation, it does not have the power to order them to reach agreement. The Mediation Act 2017 provides a further safeguard, to protect self-determination, providing that the parties are free to withdraw from mediation at any time. Justice Twomey reflected the view of the Hon Mr Justice Thomas T. Lewis, Los Angeles Superior Courts, who in 2010 presented at the International Family Law Conference at Maynooth on the benefits of requiring the parties to come together in mediation (mandating mediation), such a requirement often resulting in a settlement obviating the need for contested litigation.

Justice Twomey also noted the following:

1. Court-ordered mediation could be a better use of Court time

2. That court-ordered mediation does not, per se, breach a litigant’s constitutional right of access to the courts.

3. That mediation can lead to a narrowing of issues in dispute
4. That mandatory mediation is not a breach of right to a fair trial under Art. 6 of the ECHR
5. That one of the most compelling reasons why a court does have the power to order parties to mediate is because the role of the courts is to try and make the system better for litigants.
6. That the prohibitive costs of litigation is a factor in favour of mandatory mediation
7. That in relation to bullying and harassment cases that mediation is effectively, now mandatory
8. That “litigation is a lot like war, in the sense that, litigation is easy (and relatively cheap) for one person to start…however…litigation is not so easy and it can be expensive to end.”
9. That a court has the jurisdiction to regulate its own process, by exercising its discretion to order litigants to mediate their dispute.

Restating his view set out in V Media[4], Justice Twomey noted:

“Mediation is now front and centre of practically all civil disputes in Ireland, as a result of s. 14 of the Mediation Act 2017…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.”

In conclusion Justice Twomey stated that “the courts have the power to order litigants to mediate their dispute”, that a court in controlling its own process, has an inherent jurisdiction to order parties to mediate in appropriate cases. In the case before the court, Justice Twomey indicated that he would order the parties to mediate, should it become necessary to make such an order. The law has now changed until challenged in a higher court, and the door is firmly open for court-ordered mediation.

J Burke & Associates Limited v Patrick O’Connell [2026] IEHC 314

https://www2.courts.ie/viewer/pdf/9f787d53-f593-45ef-bd08-095f81dadd3a/2026_IEHC_314.pdf/pdf#view=fitH

^[1] Fitzpatrick v Board of Management of St Mary’s Touraneena National School & Anor [2013] IESC 62 at para.10, per MacMenamin

^[2] Atlantic Shellfish Ltd. V Cork County Council [2015] IEHC 570 at para. 18, per Gilligan J.

^[3] Churchhill v Merthyr Tydfil CBC [2023] EWCA Civ 1416

^[4] V Media Doo & Anor v Techads Media Limited [2025] IEHC 430