Historically, litigants have viewed mediation as an alternative to litigation. Recent developments, including a new High Court Practice Direction and a series of significant High Court decisions, indicate that the Irish courts now regard mediation as an integral part of litigation strategy. Parties that fail to consider mediation at an early stage may face procedural, costs and strategic consequences.
A changing landscape
The Mediation Act 2017 introduced important obligations on solicitors to advise clients about mediation before commencing proceedings. This includes advising on the benefits of mediation, confidentiality protections, the enforceability of settlements and applicable compliance requirements.
What has changed in recent years is the extent to which the courts are now willing to scrutinise compliance with those obligations and the degree to which mediation is becoming embedded throughout the litigation process. The message from the courts appears increasingly clear:
- Mediation is no longer a box-ticking exercise.
- Parties should consider mediation throughout the life of a dispute, not only on the eve of trial.
- A failure to engage meaningfully with mediation may carry procedural and costs consequences.
- Decisions not to mediate should be capable of objective justification.
Costs consequences are becoming real
The courts have increasingly demonstrated a willingness to scrutinise compliance with mediation obligations and to impose consequences where those obligations are not met.
In Byrne v Arnold [2024] IEHC 308 (‘Byrne’), the successful plaintiffs suffered a 5% reduction in their recoverable costs due to non-compliance with section 14 of the Mediation Act 2017. The Court emphasised that solicitors advising clients regarding mediation is neither unreasonable nor burdensome.
This approach was reinforced in V Media Doo v Tech Ads Media Ltd [2025] IEHC 430 (‘V Media’), where the Court highlighted the mandatory nature of section 14 and confirmed that failure to comply cannot simply be remedied retrospectively. The decision also underlined the public policy objective that litigation should, where possible, be a measure of last resort.
For litigators, a number of practical considerations follow:
- Courts are increasingly willing to enquire into compliance with the Mediation Act 2017.
- Solicitors should ensure that advice regarding mediation is properly documented and evidenced.
- Compliance failures may not be capable of retrospective correction.
- Mediation should form part of case strategy from the outset and be revisited as disputes evolve.
The most significant development
Against this backdrop, the decision in J Burke & Associates Ltd v O'Connell [2026] IEHC 314 (‘Burke’) may prove to be the most consequential development to date and is widely described as a landmark ruling.
In a dispute which had been ongoing for approximately ten years, the Court held that it possessed an inherent jurisdiction to direct parties to engage in mediation in appropriate circumstances. In reaching that conclusion, the Court emphasised:
- The public interest in reducing spiralling litigation costs.
- The efficient use of court resources.
- The ability of mediation to narrow issues even where settlement is not achieved.
- The role of mediation in enhancing the administration of justice.
The significance of Burke lies not in compelling parties to settle their disputes through mediation, but in recognising that meaningful participation in the mediation process may itself be expected in appropriate cases.
Taken together, Byrne, V Media and Burke reflect an increasingly consistent judicial approach: mediation is no longer merely something parties should consider before trial. It is becoming an integral element of proportionate and effective dispute resolution.
What should practitioners be doing now?
The focus is shifting from whether mediation should be considered to when and on what basis it is likely to be most effective. In this regard, it is important that the rationale for decisions relating to mediation is clearly recorded on file.
Files should clearly record:
- Why mediation was considered.
- Why it was accepted, deferred or rejected.
- The proportionality analysis undertaken.
- Advice provided to the client.
- When the issue should next be reviewed.
In an era where courts are increasingly focused on litigation efficiency and cost management, the ability to demonstrate a reasoned and documented approach may become just as important as the ultimate decision itself.
Timing remains critical
None of this means mediation is appropriate in every case or at every stage. Experience suggests that mediation is generally most effective when:
- Core liability issues are understood.
- The parties can undertake a realistic evaluation of risk
- Key expert evidence is available.
- The principal issues have been adequately defined.
Conversely, mediation may be premature where critical expert evidence, discovery or quantum information remains outstanding.
For complex construction, professional indemnity and multi-party disputes, mediation should be viewed not merely as a settlement event but as a strategic risk-management tool capable of narrowing issues, reducing costs exposure and assisting parties in evaluating litigation risk at an earlier stage.
Making mediation work
Mediation can be a highly effective tool for litigants, insurers and insured professionals, but it is not appropriate for every dispute and should not be viewed as a mandatory step on the road to settlement. Once mediator fees, legal costs, expert input and management time are considered, mediation can represent a significant investment and, in some cases, other forms of dispute resolution may offer a more proportionate route.
Choosing the right mediator is critical. The mediator's background should be suited to the dispute, particularly in complex professional indemnity, construction or technical claims. Without a proper understanding of the issues, there is a risk that the process is reduced to a negotiation focused solely on numbers rather than a meaningful analysis of liability, causation and quantum.
Preparation is equally important. Mediation is unlikely to succeed where key documents, expert evidence and properly supported quantum calculations have not been exchanged well in advance. Parties require sufficient information to assess litigation risk, evaluate settlement parameters and make informed decisions.
Where the necessary information is unavailable, there is a danger that parties feel commercial pressure to settle simply to justify the costs already incurred in preparing and attending the mediation.
For insurers and their advisers, this reinforces the importance of robust reserving, liability assessment and obtaining the necessary expert input before committing significant resources to mediation.
It is also important to remember that a mediator cannot impose a solution. Unlike a judge or arbitrator, a mediator has no power to make a binding decision; their role is to challenge assumptions, test positions and assist the parties in reaching a voluntary agreement.
Finally, how the day is managed matters. Too often meaningful negotiations do not begin until late afternoon. Setting clear timelines and expectations from the outset can help focus minds and encourage earlier engagement, making better use of the process and increasing the prospects of settlement.
Even where a dispute does not settle in full, it can narrow issues, clarify positions and reduce future costs. Done badly, it can be an expensive day spent exchanging numbers without addressing the issues that actually drive settlement.
Final thoughts
Irish courts are increasingly encouraging, scrutinising and, in some circumstances, directing engagement with mediation. The result is that mediation is no longer something litigants simply consider shortly before trial. It is becoming an increasingly important component of modern litigation strategy.
Success remains heavily dependent on timing, preparation, proportionality and access to sufficient information. Poorly prepared mediations may simply add cost and delay, whereas well-timed mediations can narrow issues, reduce exposure and create opportunities for early resolution.
For litigants, insurers, brokers and professional advisers, the key message is clear: mediation should be considered early and revisited as disputes evolve. Increasingly, the parties best placed to manage costs and litigation risk will be those who can demonstrate that mediation formed part of a reasoned, proportionate and documented litigation strategy.
