Mediation in Ireland

On St. Patrick’s Day 2026, the Irish Minister for Enterprise, Tourism, and Employment joined the CEO of the American Arbitration Association and the International Centre for Dispute Resolution to announce a landmark joint venture: the creation of ICDR Ireland. While the specific details of this initiative continue to take shape, the timing appears ideal to spur a critical leap in the way the country offers legal solutions to its citizens and the international business community. This new venture arrives while Ireland continues to navigate its unique role as the European Union’s sole remaining common law jurisdiction and its courts move inexorably toward recasting mediation as an essential part of that process. The opportunity to develop a robust hybrid dispute resolution process known as Guided Choice Mediation[1] through ICDR Ireland and the courts could truly distinguish Dublin as a unique place for global businesses to resolve their disputes, while supercharging the use of mediation by Irish people.

Ireland’s Place in the EU – Confronting the Mediation Paradox

The foundational mandate in Article 47 of the Charter of Fundamental Rights of the European Union guarantees everyone “whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy…[following] a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.” Ireland has historically satisfied this guarantee through the common law’s adversary process, a time-tested system of public hearings and judicial determinations that has served as the backbone of Irish justice for centuries.

Yet as global businesses and domestic constituencies increasingly demand resolutions that prioritize speed, cost-efficiency, and the preservation of relationships, the question arises whether a purely adversarial model remains the most "effective" means of fulfilling this promise.

The Mediation Paradox

The path toward a modern, flexible, and fully effective dispute resolution infrastructure – whether litigation or arbitration, or both – must overcome the EU’s “Mediation Paradox,” i.e., the striking gap between the widespread rhetorical praise for mediation and its disappointingly low rate of adoption throughout the Union. In 2008, the EU issued a Mediation Directive 2008/52/EC, which calls on Member States to step up their efforts to encourage the use of mediation through comprehensive information campaigns promoting the procedure and its advantages; EU-wide quality standards for the provision of mediation services; and relevant, comprehensive statistical data. By 2014, when the earliest comprehensive statistical data were compiled, it became apparent that no EU Member State had effectively increased the use of mediation.[2] 

While Ireland’s Mediation Act 2017 was a significant milestone, its reliance on a voluntary framework has allowed a culture of avoidance to persist. To overcome this resistance, the authors applaud the recent decision of the High Court concluding that courts have inherent power to order parties to participate in mediation and urge Ireland to transition mediation from an under-utilized voluntary form of ADR into a pillar of its legal architecture, both within the civil justice system and as part of arbitration conducted within its jurisdiction.

Proposals for Solving the Mediation Paradox in Ireland

Ireland would see a significant increase in the use of mediation to produce settlements in court and in arbitration by modifying one existing rule of court and adopting one arbitration rule as part of the establishment of ICDR Ireland. 

Proposal #1 - Modify Rules of Court, Order 56(A)

In 2010, Ireland adopted Order 56(A) amending the Rules of the Superior Courts (Mediation and Conciliation) 2010. Order 56(A) provides in relevant part:

2. (1) The Court, on the application of any of the parties or of its own motion, may, when it considers it appropriate and having regard to all the circumstances of the case, order that proceedings or any issue therein be adjourned for such time as the Court considers just and convenient and –

(i) invite the parties to use an ADR process to settle or determine the proceedings or issue, or

(ii) where the parties consent, refer the proceedings or issue to such process, and may, for the purposes of such invitation or reference, invite the parties to attend such information session on the use of mediation, if any, as the Court may specify.

Consistent with the recent decision of the High Court (Twomey, J) in J. Burke & Associates Ltd. v. Patrick O’Connell (20 May 2026), we suggest that this text be replaced with the following:

2. (1) The Court, on the application of any of the parties or of its own motion, may, when it considers it appropriate and having regard to all the circumstances of the case, and at any time not later than 28 days before the date on which the proceedings are first listed for hearing, order that the parties participate in good faith in mediation.

Proposal #2 - Rule for ICDR Ireland Requiring Guided Choice Mediation in cases with more than €1,000,000.

ICDR Ireland could announce to the international business community that it is serious about including robust mediation services as part of the international commercial arbitration services it provides by adopting the following within its arbitration rules:[3]

For all disputes where a party seeks to recover damages in excess of €1,000,000, ICDR Ireland will provide the parties with a list of mediators trained in Guided Choice Mediation. If the parties cannot agree to a Guided Choice Mediator from the list provided, a qualified Guided Choice Mediator will be appointed to serve as mediator within 30 days after the arbitral tribunal has been selected and sworn.

What is Guided Choice Mediation?

Guided Choice Mediation (GCM) is a multi-phase hybrid process. It is not a one-day negotiation. GCM is based on seven core principles: (1) An obligation to participate in mediation; (2) Retaining a mediator as early as possible; (3) The mediator’s confidential investigation and diagnosis; (4) Voluntary information exchange guided by the mediator; (5) Anticipating and overcoming impasses; (6) Continued use of the mediator after negotiations are suspended; and (7) Customizing the court or arbitration process for disputes that do not settle.

GCM was developed by lawyers and parties involved in the resolution of construction disputes, but its potential value goes well beyond that industry. Mediators using GCM processes are trained to understand and identify early the factors that lead to impasse. Causes of impasse can be many, and include prior experiences of one or more parties, personality conflicts, conduct requiring apology, cultural influences, cash flow restrictions, limitations on authority, and the need for “up the chain” approvals, questions about insurance cover, and even fear that a settlement will be viewed as a loss. 

Based on the diagnosis, the mediator prescribes a treatment process that uses collaborative rather than adversarial methods for exchange of the information needed to break through the parties’ impasses. If the GCM mediator cannot overcome all impasses and settle all claims, s/he works to frame the litigation or arbitration for the most efficient possible trial or final evidentiary hearing of the claims and defenses that are not settled.

GCM is thus a hybrid dispute resolution process, similar in some ways to Arb-Med-Arb, pursuant to which mediation is no longer viewed as an alternative to other forms of dispute resolution. Rather, it becomes an integral part of them.

Mediation Should Not Be Considered ADR: It Should Be an Essential Part of Litigation and Arbitration

Labeling both arbitration and mediation under the broad umbrella of ADR is a historical misstep that obscures the fundamental difference between these processes. Arbitration was among the first methods of ADR, developed centuries ago as an alternative to domestic civil justice systems. But as a process, it shares more in common with litigation than it does with mediation. Both litigation and arbitration are adversarial adjudicative processes where a neutral third party (be it a judge or an arbitrator) imposes a binding decision on the participants. In the international business realm, the success of the New York Convention has been so profound that one might even argue the roles have inverted: domestic civil justice systems in the 21st century have become the "alternative" to international commercial arbitration.

Mediation is a process that seeks to resolve disputes between two or more parties, facilitated by an independent neutral third party - the mediator. If arbitration and litigation represent the imposition of a result, mediation and settlement represent self-determination, even within the confines of litigation or arbitration. Resolution by mediation is not a departure from the adjudicative process, but rather a facilitation of its most common conclusion: settlement. Data from Irish courts suggest that more than 90% of cases—and upwards of 95% in personal injury claims—settle before a judgment is entered. While confidentiality makes arbitration data harder to aggregate, major arbitral forums report similar trends. Settlement is viewed as a part of any dispute, and mediation should be viewed through the same lens. Mediation is not an "alternative" to either system; it is one of the two fundamental ways a dispute in litigation or arbitration ends. A case either concludes by the decree of a third party or through the consensus of the parties themselves. By integrating mediation as a facilitated form of settlement, we move closer to a legal infrastructure that treats self-determination not as a secondary option, but as a statistical and procedural norm even among adjudicative systems.

Why Ireland?

Mediation was introduced in Ireland well before the EU Mediation Directive. Ireland adopted state-funded family mediation in 1986 and state-funded community mediation in 1990. In 2004, the Commercial Court promoted mediation to resolve disputes, and in 2010, the Rules of the Superior Courts were amended by Order 56(A) to formally encourage ADR in High Court cases. Compulsory mediation was introduced in Ireland in 2004 by the Courts and Civil Liability Act 2004, but only for personal injury cases. In 2017, the Oireachtas enacted the Mediation Act (2017), which encourages the use of mediation, requires solicitors and barristers to inform clients about mediation, and empowers courts to invite parties to consider mediation at any stage of the proceedings.

But Order 56(A), Courts and Civil Liability Act 2004, and the Mediation Act have had disappointing results. Mediation was still viewed as “voluntary,” and Irish Courts had enshrined that in the following description that appears on the Irish Court Service website stating that “…No one can be forced to join, and anyone can stop at any time.”[4]

Some commentators expressed concern that mandating parties in litigation to participate in a mediation process as part of the guaranteed access to civil litigation might run afoul of Article 47 of the Charter of Fundamental Rights or violate Article 34 of the Irish Constitution, guaranteeing every citizen's fundamental right of access to the courts. 

But there have been Irish voices for more than a decade, primarily from the bench, who have challenged the premise that “no one can be forced to join” in a mediation process. Consider the 2013 concurring opinion of Mr. Justice McMenamin from the highly publicized decision in Kathleen Fitzpatrick v Board of Management of St. Mary's Touraneena National School and Another [2013] IESC 62:

Many common law jurisdictions have espoused ADR or mediation as being an entirely necessary adjunct to the legal process. Some suggest the process, when availed of, must always be voluntary. I do not agree; there may be cases where such a process should be mandatory. But it must be fair. The fact that there may be a penalty of costs for failure to engage in such a process is not, I think, sufficient argument against it, especially when court lists become lengthy, and litigation costs become significant. (McMenamin J., in Fitzpatrick v. Board of Management of St Mary’s Touraneena National School & anor (sic) [2013] IESC 62)

[Emphasis added]

The High Court decision in V Media DOO & First Click Marketing Operations Management Ltd v Techads Media Ltd, [2023] EWCA Civ 1416, reinforced the mandatory nature of mediation declarations under the Mediation Act, 2017 (the Act). The judgment requires that if a court is not satisfied that a valid Mediation Declaration was delivered at the time proceedings were issued, it must adjourn the proceedings until compliance with section 14 of the Mediation Act 2017 is established.

On 15 April 2026, Mr. Justice David Barniville, President of the High Court of Ireland, announced that Courts expect parties to engage meaningfully with mediation and view courts as a last resort for resolving civil disputes. Then, on 20 May 2026, in J. Burke & Associates, Mr. Justice Twomey resoundingly rejected the most common constitutional arguments against mandated mediation and announced that the courts of Ireland have an inherent jurisdiction to order parties to attempt mediation. 

The modification of Order 56(A) will hopefully follow that decision in due course.

Other factors make Ireland an ideal jurisdiction to incorporate mediation as a required part of its court and its arbitration rules of procedure.

• Ireland is uniquely positioned to integrate mandatory mediation through the "Ireland for Law" initiative, which aligns with the international business community's preference for efficient resolution in post-Brexit Europe.[5] 
• Like other former British colonies, Ireland has retained a divided bar, with solicitors as members of the Law Society while barristers are members of the Bar of Ireland, having passed through the King’s Inn as part of their qualification process. Both the Bar and the Law Society are developing programs to offer barristers and solicitors, respectively, the skills and training required to be effective mediators.
• In addition, Ireland’s mediation landscape already extends well beyond the legal community. Established in 1992, the Mediators' Institute of Ireland has laid the foundation for a separate profession of mediators who serve the general public and diverse professional organizations.

Why Must Mediation Participation Be Mandated?

This article is not the first to argue that mediation needs to become more institutionalized. In a thoughtful article published by Mediation Magazine on December 15, 2025, entitled “Mediation Architecture: From Clause to System,” [6] Paul Sills sums up the broader global mediation paradox as follows:

Despite its proven advantages—speed, flexibility, confidentiality, and relationship preservation—mediation remains underutilized. Many legal systems promote it rhetorically but underfund it in practice. In some, mediation is mandated by statute yet treated as a procedural formality. In others, it is encouraged but rarely trusted to deliver enforceable, durable outcomes.

Unfortunately, even while Mr. Sills argues persuasively that mediation should be institutionalized, he seems to accommodate those critics who contend that statutorily mandated mediation leads to “procedural formality” or “ticking the box.” In counterpoint to this criticism stands the experience in the State of Florida, USA, that, for 35 years, has legislatively mandated mediation in nearly all civil disputes. In 2022 and 2023, this mandate led to over 90,000 mediation sessions annually. Most mediations in Florida are not mere procedural formalities. Settlement rates are impressive, and an additional benefit from 35 years of mandated mediation has been the growth of a robust mediation culture, along with thousands of qualified, certified, and highly experienced mediators, many of whom are not lawyers, who offer a wide range of mediation styles and expertise to a large percentage of the population.

There are multiple reasons to require participation in some form of mediation as part of a dispute resolution process, whether a civil justice system or an arbitration process, rather than treating it as a free-standing voluntary alternative. For example,

• Mediation provides parties an opportunity to control their destiny with the assistance of a trained third party to help them explore options that might not be available should the dispute be resolved by the decision of a judge or arbitrator, who are limited to remedies available under the law. Mandating that parties participate in the process, while not mandating the outcome, is essential because simply making it available and encouraging its use has not worked…anywhere.
• Adversarial legal systems developed over centuries – particularly common law systems – are resistant to change. A recent study of solicitors in Ireland conducted by certified mediator, solicitor, and senior counsel Bill Holohan, examined compliance with section 14 of the Mediation Act 2017. It drew on detailed interviews with 55 solicitors carried out in 2023 as part of Mr. Holohan’s 2025 Ph.D. thesis and concluded that the objectives of the 2017 Act are being “significantly impeded” by a combination of limited knowledge, “cultural resistance,” and “systemic non-compliance”.[7] Giving courts and arbitral forums clear authority to mandate participation in mediation is needed to create a legal culture that embraces mediation.
• Mediation has the potential benefit of preserving or resurrecting personal and business relationships that have become strained or broken in the litigation or arbitration process. These are the very relationships that will most benefit from being forced to engage in a cooperative process guided by a skilled professional to explore alternatives to the imposed decision of a judge or arbitrator, because they are the least likely to do so voluntarily.
• Mediation has the potential to relieve crowded court dockets by resolving many cases entirely and resolving some cases partially. Even partial resolutions can have a favorable impact on crowded court dockets because complicated or multi-party cases tend to have a disproportionately heavy impact on dockets as they place heavier demands on court resources. Even cases that might eventually settle before trial or hearing, even without mediation, are likely to benefit from earlier settlement, providing parties with significant savings.
• Mediation has the potential to provide more efficient and effective resolutions to international commercial arbitration, considering the adoption by almost 60 countries of the Singapore Convention on Mediation, which provides a unified, efficient framework for enforcing international, commercial settlement agreements resulting from mediation.
• Many of these, as well as other sound reasons for incorporating mediation into the dispute resolution process, were discussed at length in the exhaustive judgment of Twomey, J in J. Burke & Associates.

Conclusion

Ireland is in a unique position at a unique time to adopt bold initiatives designed to solve the Mediation Paradox and offer global business a modern, efficient, and effective series of options to resolve disputes. At the same time, it can build a culture that embraces mediation not as an alternative to litigation or arbitration, but as an essential part of both dispute resolution processes.

England adopted such a Rule following the decision in November 2023, when the Court of Appeal for England and Wales rocked the English legal community, handing down its decision in the case of James Churchill v. Merthyr Tydfil County Borough Council. [2023] EWCA Civ 1416. The Churchill decision was followed by the adoption of amendments to the Civil Procedure Rules (“CPR”) effective October 1, 2024. The amendments now direct courts to consider ordering parties to mediation.

But England has not addressed the role of mandatory mediation in the context of arbitration, domestic or international … and England is no longer in the EU. Ireland has a unique opportunity to lead the way in transforming mediation from ADR to an essential part of litigation and arbitration.