Mediation ‘becoming mandatory’, event hears
An event in the Law Society has heard that mediation is becoming mandatory, de facto, in Ireland, due to legislation and the costs implications of not engaging in the process.
Arbitrator and Law Society Council member Brian McMullin was speaking at a panel discussion hosted by the Law Society’s ADR (alternative dispute resolution) Committee.
The discussion focused on trends in arbitration, mediation, and dispute resolution and was held to mark the start of Dublin International Dispute Week 2025.
Trends
The event also heard from High Court President Mr Justice David Barniville, who said that the legislative position, in the , was that mediation in Ireland was intended to be a voluntary process.
He also pointed, however, to several trends that were encouraging more parties towards engaging in the process.
The High Court President said that the Civil Liability and Courts Act 2004 contained a provision that a court could compel a mediation conference in certain personal-injury proceedings, although this had never been used.
He also referred to what he called a “light-touch provision” in a practice direction on clinical-negligence actions earlier this year, which requires parties to have offered or engaged in mediation before applying for a trial date, describing this as “a strong encouragement” to parties in such cases.
2017 act
He also cited recent judgments referencing section 14 of the 2017 act, which requires solicitors to advise clients, before starting proceedings, about the advantages and benefits of mediation.
In a judgment this year, Mr Justice Michael Twomey ruled that a court had an obligation to adjourn a case if it was not satisfied that a solicitor had complied with section 14.
Mr Justice Barniville also pointed out that courts had the power, under section 21 of the act, to impose costs consequences on parties who unreasonably refused or failed to engage in mediation.
Responding to the High Court President’s remarks, McMullin said that practitioners needed to “get with the programme” and make sure that they complied with their statutory obligations.
Mediation ‘takes off’ in Britain
Offering a British perspective, Jonathan Wood (current chair, LCAM) said that Britain now “effectively” had mandatory mediation, due to the costs consequences of not engaging in the process and a recent landmark case, , in which the Court of Appeal held that a plaintiff could be ordered to engage in mediation.
Wood cited figures estimating that mediation saved businesses almost Stg £6 billion a year as an illustration of how mediation had “taken off” in Britain.
The panel also discussed mediation in family-law cases, with family-law mediator Denise Waldron BL citing figures from the Legal Aid Board’s 2023 annual report showing that all issues had been resolved in around 60% of 1,199 cases where the process had been used.
Family arbitration
She told the event that family arbitration, which is not currently available in Ireland, had been “very successful” in Britain, covering issues involving finances and childcare.
The barrister said that there were proposals to amend divorce legislation to adopt similar principles in Ireland, with the award ultimately having to be approved by a judge.
“I would imagine, with family arbitration, it would be [for] more high-net-worth cases,” she added.
US mediator Joseph Matthews, who practises in Florida, outlined the situation in the US, telling the event that a 1987 statute in his state had introduced mandatory mediation in all civil cases, with some exceptions.
He said one of the disadvantages of mediation was a reduced flow of disputes to the courts to allow the development of the law on such cases.
Opposition from third-party funders
Matthews added that the greatest opposition to mandatory mediation had come from third-party funders of litigation, who saw it as an attempt to deny their clients their right to get to trial.
“When there's a third-party funder involved, we haven't yet come to the point where we are able to ask the court to require that the third-party funder attend,” he stated, adding that the absence of one of the key decision-makers from the room could “thwart the most thoughtful, well-prepared mediator”.
Behavioural economist Dr Emma Howard (TU Dublin) spoke about the importance of mediators in “reframing” issues for parties whose behaviour or assessments may be influenced by biases or emotional factors.
In a discussion on how Ireland could attract more arbitration business, Wood advised Ireland to “find a niche”, suggesting sports arbitration as an area where Ireland had an advantage over Britain due to the important role of EU law, adding that there was some “disquiet” about the role of the Swiss-based Court of Arbitration for Sport (CAS).