High Court Recognises an Inherent Jurisdiction to Order Mediation in Non–Personal Injury Civil Proceedings

Case: J Burke and Associates Ltd v O'Connell (Approved)
Citation: [2026] IEHC 314 (High Court, Twomey J, 20 May 2026)

1) Introduction

This judgment addresses a system-wide procedural question for Irish civil litigation: whether the High Court may order parties to attempt mediation (mandatory attendance), or is limited to merely inviting them to consider it (paras. 1–7, 24). The issue arose in a long-running contractual fee dispute between an engineering company (the plaintiff) and a farmer (the defendant), where the plaintiff sought an order “inviting or directing” mediation under Order 56A, section 16(1) of the Mediation Act 2017, and/or the court’s inherent jurisdiction (paras. 8–14).

The defendant opposed mediation on grounds including entrenched views, already-incurred costs, lateness, and added expense (para. 12). The court treated the real controversy as whether it had power to direct mediation in a non-personal injuries claim, and if so, whether it should do so here (paras. 13–15, 24–25).

2) Summary of the Judgment

The High Court held that Irish courts do have an inherent jurisdiction, in appropriate cases, to order litigants to engage in mediation, as part of controlling their own process and ensuring the efficient and effective administration of justice (paras. 139, 184–186).

The court emphasised that such an order is limited: it compels only commencement/attendance at a mediation process, not settlement; and parties remain free to withdraw—settlement remains voluntary (paras. 30, 185).

Applying proportionality and suitability considerations, the court concluded this case was one where it would be appropriate to order mediation given likely disproportionate litigation costs and potential savings of time and court resources (paras. 165–180, 188). However, because the defendant later indicated conditional willingness to mediate, the court decided not to make the order “at this juncture”, leaving liberty to apply as needed (paras. 181–183, 189).

3) Analysis

3.1 Precedents Cited (and how they shaped the reasoning)

  • Fitzpatrick v Board of Management of St Mary's Touraneena National School & Anor [2013] IESC 62: cited for MacMenamin J’s observation that “there may be cases where [a mediation] process should be mandatory” (para. 2, fn. 1; para. 78). Twomey J treated this as non-binding but supportive of the conceptual legitimacy of compelled participation.
  • Atlantic Shellfish Ltd v Cork County Council [2015] IEHC 570 and Atlantic Shellfish Ltd v Cork County Council [2015] IECA 283: relied on as the leading Irish appellate guidance on factors relevant to an Order 56A invitation to mediate (paras. 74–75, 144). The Court of Appeal’s non-exhaustive factor list (Irvine J) became the baseline framework Twomey J extended to mandatory mediation decisions (para. 144). Twomey J also treated the High Court’s statement that “[n]o party should be forced to attend mediation” as non-binding obiter (paras. 2, 74).
  • Ryan v Walls Construction [2015] I.R. 558, [2015] IECA 214: cited for obiter remarks that compulsion may reduce prospects of mediation success and for reliance on Halsey v. Milton Keynes General and HS Trust [2004] 1 WLR 2002 (paras. 75–77). Twomey J treated these views as historically contingent (“mediation was in its infancy”) and overtaken by later developments, including Churchill (paras. 76–83).
  • Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416: treated as persuasive authority supporting a court’s power, as a matter of process control, to stay/delay proceedings to require non-court dispute resolution, provided the order pursues legitimate aims and is proportionate and does not impair the “very essence” of access to a judicial hearing (paras. 3, 39–40, 126–131). Twomey J drew heavily on Vos MR’s rejection of the idea that compelled ADR necessarily violates fair trial/access rights (paras. 39–40, 127–131).
  • DKH Retail Limited & Ors v City Football Group Limited [2024] EWHC 3231 (Ch): used as a practical illustration that ordered mediation can succeed even where a party asserts low prospects of settlement; and that “bringing the parties together” can break deadlock (paras. 10, 28–32, 80–83). The postscript settlement in DKH Retail supported the court’s scepticism about subjective predictions of mediation failure (paras. 28, 82–83).
  • Tracey t/a Engineering Design & Management v Burton [2016] IESC 16, Talbot v Hermitage Golf Club [2014] IESC 57, and O'Reilly McCabe v. Minister for Justice, & Patrick Cusack Smith & Co (Agents of Thomas McCabe, Ward of Court & Minor) [2009] IESC 52: together informed the constitutional analysis that access to court is important but not absolute; the courts must balance litigant rights with finality, fair procedures, and finite court resources (paras. 33–35, 43–44). This supported the conclusion that a short, proportionate procedural detour into mediation does not of itself breach access rights (paras. 35–47).
  • Kirwan v Connors [2025] IESC 21: supplied a modern Supreme Court articulation of inherent jurisdiction as implicit in Article 34.1 to ensure the administration of justice operates “in an efficient and effective manner” and to protect court processes from abuse (paras. 136–137). Twomey J used this to frame mandatory mediation as an efficiency-protecting inherent power rather than judicial lawmaking (paras. 134–136, 185).
  • Costs/mediation-sanction authorities: Mascarenhas v Karim [2022] IECA 48 (cost penalty for refusal to mediate) (para. 115) and Byrne & Ors v Arnold [2024] IEHC 308 (cost penalty for non-compliance with Mediation Act s.14 declaration requirements) (paras. 108–112). These cases were deployed to show the real teeth of the modern mediation regime and the logical coherence of prospective ordering powers (paras. 103–112, 105–107).

3.2 Legal Reasoning

(a) Separating “power” from “exercise”

A key structural move was the court’s insistence that whether the court has jurisdiction is distinct from when it should be used (paras. 26–29). This allowed Twomey J to accept that mandatory mediation will not be suitable in all cases—especially where constitutional or determinative legal issues require adjudication—without conceding absence of power.

(b) What mandatory mediation means (and does not mean)

The judgment drew a bright line between compelling settlement (impermissible) and compelling a procedural step of attempting mediation (potentially permissible) (paras. 30, 185). The court stressed party autonomy is preserved because:

  • the court cannot dictate settlement terms (para. 30); and
  • parties may withdraw from mediation; the voluntariness lies in agreement, not attendance (para. 30, 185).

This framing was central to proportionality: the intrusion is limited and aimed at facilitating resolution, not replacing adjudication.

(c) Constitutional access to courts: not absolute, and compatible with proportionate procedural management

Twomey J concluded that mandatory mediation per se does not breach the constitutional right of access to the courts (paras. 35–47). The reasons included:

  • Courts already manage timing and procedure to protect finite resources (paras. 33–35, 43–44), consistent with Tracey t/a Engineering Design & Management v Burton [2016] IESC 16.
  • Short delays to consider or attempt settlement are an everyday judicial function (paras. 40–41).
  • The existence and longevity of mandatory mediation in personal injuries under s.15 of the Civil Liability and Courts Act 2004 without constitutional invalidation reinforced compatibility (paras. 36, 85–87).
  • Mandatory mediation can protect other citizens’ access by freeing hearing time (paras. 33–34, 42–46, 179).

(d) Inherent jurisdiction and “process control”

The legal foundation for mandatory mediation in non-personal injury cases was located in inherent jurisdiction to control process and ensure efficient justice, supported by Kirwan v Connors [2025] IESC 21 (paras. 136–137). Twomey J reinforced this with “tacit recognition” logic: where the Oireachtas empowers the courts to penalise unreasonable refusal to mediate in costs (Legal Services Regulation Act 2015 s.169(1)(g)), it is coherent to infer a complementary ability to make proportionate, forward-looking orders facilitating mediation (paras. 103–107, 137–138).

(e) Statutory and practice landscape: mediation as default dispute-resolution policy

The judgment placed decisive weight on the post-2015 reforms:

  • Mediation Act 2017 s.14 requiring solicitors, pre-issue, to advise clients to consider mediation and to file a statutory declaration; with mandatory adjournment for non-compliance (paras. 88–92).
  • Mediation Act 2017 s.16 “invitation” power, plus s.16(5) clarifying that invitation is “without prejudice” to other discretionary powers to facilitate resolution (paras. 123–125).
  • Mediation Act 2017 s.21 and Legal Services Regulation Act 2015 s.169(1)(g) costs consequences for unreasonable refusal/failure (paras. 103–107).
  • Practice-based “quasi-mandatory” mediation examples: bullying/harassment listing condition in the Legal Diary (paras. 93–96), Practice Direction HC 127 (non-jury trial summary asking about settlement/mediation) (paras. 97–98), and Practice Direction HC 131 (clinical negligence undertaking to offer/engage in mediation, subject to exception) (paras. 99–102).

(f) Threshold for making an order: prospect and proportionality

The court articulated limiting principles: before ordering mediation there should be a prospect of resolution or narrowing of issues, and the order must be proportionate, including not unduly delaying court access (paras. 139, 186).

(g) Discretionary factors

For the exercise of discretion, Twomey J adopted:

  • the eight non-exhaustive factors from Atlantic Shellfish Ltd v Cork County Council [2015] IECA 283 (para. 144); and
  • the broader, context-sensitive approach in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 (paras. 145–147), while rejecting a rigid checklist.

3.3 Application to the Facts (why this case was suitable)

The court considered the defendant’s objections (paras. 148–164) and found them insufficient, particularly because:

  • “Entrenched views” misunderstand mediation’s purpose: settlement can occur without a party changing its view of rights (para. 149).
  • Already-incurred costs exemplify the “Catch-22” of litigation; they are not a reason to force further litigation rather than attempt exit via mediation (paras. 150–154, 69–72).
  • “Lateness” is not decisive; mediation can be useful even on the eve of trial, and crystallised issues can assist (paras. 155–157).
  • The fact only one party is willing does not foreclose success; experience shows mediation can “crack even the hardest nuts” (paras. 160, 81).

The strongest pro-mediation factors were:

  • Cost proportionality: projected trial and appeal costs could exceed the €252,004 claim, whereas mediation costs would be modest by comparison (paras. 17–18, 165–170).
  • Logic and litigant welfare: spending more than the amount in dispute to resolve it is irrational and inconsistent with justice values (paras. 171–172, 135).
  • Narrowing issues even if no settlement, thereby reducing trial length and cost (paras. 173–174).
  • Court resources: potentially up to around two weeks of High Court time could be saved (paras. 175–177, 180).
  • No meaningful impairment of court access was identified if mediation failed (paras. 178–179).

3.4 Impact

Although framed as an interlocutory decision in a single fee dispute, the judgment is a significant development in Irish civil procedure:

  • Doctrinal shift: it squarely endorses a general inherent jurisdiction to order mediation beyond the personal injuries context of s.15 of the Civil Liability and Courts Act 2004, directly addressing uncertainty created by earlier obiter statements in Atlantic Shellfish Ltd v Cork County Council [2015] IEHC 570 and Ryan v Walls Construction [2015] I.R. 558, [2015] IECA 214.
  • Procedural leverage: litigants may increasingly seek mandatory mediation (or face it) where costs, delay, or court-time demands are disproportionate, particularly in “everyday” High Court commercial/chancery disputes.
  • Alignment with modern ADR policy: the reasoning integrates the Mediation Act 2017 and costs-sanctions regime into a coherent judicial toolkit, reducing the gap between “invite” and “incentivise by costs” on the one hand, and “direct” on the other (paras. 103–107).
  • Future appellate attention: because the court ultimately did not make a coercive order in this case (paras. 181–183), the judgment’s jurisdictional holding may be tested in a case where an order is actually made and challenged.

4) Complex Concepts Simplified

  • “Inherent jurisdiction”: powers courts possess not because a statute explicitly grants them, but because they are necessary to manage proceedings and make the administration of justice effective (paras. 136–137).
  • “Obiter”: statements not essential to the decision and therefore not binding (paras. 2, 74–77, 127–128).
  • Mandatory mediation: a requirement to attempt the process (attendance/engagement), not to settle; parties may withdraw; settlement is always voluntary (paras. 30, 185).
  • Proportionality: any procedural restriction must pursue a legitimate aim (efficient, cost-effective resolution) and must not unduly impair access to a judicial hearing (paras. 139, 186; cf. Churchill).
  • Costs sanctions for refusing mediation: even a winning party can lose some costs if they unreasonably refuse mediation (Legal Services Regulation Act 2015 s.169(1)(g); Mediation Act 2017 s.21) (paras. 103–107, 115).

5) Conclusion

Twomey J’s central contribution is the clear statement that, in suitable non-personal injury civil proceedings, the Irish courts may order mediation as an incident of inherent jurisdiction to control procedure and protect the efficient administration of justice (paras. 139, 184–186). The judgment frames mandatory mediation as a limited, proportionate step that preserves party autonomy in settlement and preserves ultimate access to adjudication, while addressing the practical injustice of disproportionate litigation costs and scarce court resources.

Even though no order was made on the facts at the time of judgment due to the defendant’s conditional agreement to mediate (paras. 181–183), the reasoning is likely to influence interlocutory practice across the High Court—particularly where costs threaten to overwhelm the substantive stakes.