Irish Courts Begin to Emphasise the Need to Advise and use Mediation

Tony Allen: Solicitor, Senior Consultant to CEDR, CMC Emeritus Fellow

Costs sanctions for not advising on mediation

Although Ireland has beaten England and Wales at enshrining a Mediation Act in law, the country's approach to mediation has remained (like the 2017 Act itself) framed on the basis that mediation is and needs to be voluntary. There are no court powers to do more than advise and recommend its use, and certainly the position there is far from that which obtains on this side of the Irish Sea, since Churchill and the 2024 amendments to the CPR. No appetite for giving Irish judges the power to order parties into mediation seems yet to have emerged.

However, as in England & Wales, Irish judges are given powers over costs awards, rather similar to those set out in CPR 44, allowing them to penalise unreasonable litigation conduct. The Legal Services Regulation Act 2015 s.169 generates these powers which are exercisable at the conclusion of a trial. These cover behaviour both before and after issue, and they include permitting a sanction on the following basis:

where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.

The Irish RSC Order 99 permits judges to apply approaches permitted by s.169 to costs decisions on interlocutory hearings. So far, Irish judges have apparently not been quick to impose costs sanctions for failure to mediate. However, it is clear that mediation is looked upon with great favour by the Irish judiciary, many of whom were accredited as mediators by CEDR while in private practice as barristers or solicitors. The Mediation Act 2017 s.14 requires solicitors to advise their clients about mediation before issuing proceedings and to file a statutory declaration that they have done so when issuing.

In Byrne v Arnold[1] - an inheritance dispute over an intestate estate - the plaintiffs sought interlocutory injunctive relief against the defendant to restrain dissipation of assets. In the course of the hearing by Kennedy J the judge discovered that the plaintiff’s solicitor had not fulfilled his advisory obligations with his client and consequently had not filed the required statutory declaration. Kennedy J dealt with this default first, before finding for the plaintiff on the merits of the application, and ruled that the plaintiff’s costs would be reduced by 5% for this default, which Kennedy J discussed at some length, pointing out in particular that this provision is not just for the benefit of the litigants in a given case, but for the health and efficiency of the civil justice system as a whole, to settle what could be settled as early as possible. Although this seems a modest sanction, it is one of the first of its kind imposed in Ireland, and Kennedy J warned the legal profession that such a breach would certainly be dealt with much less leniently in future.

One passage in his judgment is well worth quoting, as it sums up vividly and accurately the issues surrounding choices over early and late use of mediation:

Whether mediation is premature will depend on the circumstances, but it would be wrong to rule out negotiations or mediations early in proceedings solely because the parties have only limited visibility of their strengths and weaknesses. That could be said in almost every case. The counterargument is that rejecting or delaying opportunities to negotiate or mediate could also have unpredictable costs, risks and adverse consequences. Most negotiated settlements involve a leap in the dark to some degree. Litigants, like businesspeople, must sometimes reach a decision based on the best available information, knowing that the outcome at trial could be better (or worse) but that there are also costs and risks associated with delaying such engagement. In some cases - but perhaps not as many as might be thought - waiting for more information may be prudent. The essential dynamic is that earlier negotiations offer greater potential cost savings, but each side may be less informed as to the merits (and their position may improve – or disimprove – if they delay in engaging). Other factors may affect the optimum timing in particular situations. Clients and lawyers must balance such competing factors when deciding whether and when to mediate.

Ireland may see a growing enthusiasm among its judges to penalise failure to mediate, even though it is true that after CEDR’s involvement in training mediators in Ireland over the last twenty years or so, its use is widespread.

Requiring mediation in Irish clinical negligence claims

A new High Court Practice Direction was issued on, and effective from, 28 April 2025. This Practice Direction specifies the circumstances in which a party to clinical negligence proceedings may apply for a date for trial. Its principal purpose and objective is to facilitate the earlier resolution of claims while also ensuring that cases are properly prepared for trial and enhancing efficient case management generally. It applies to all clinical negligence proceedings before the High Court, including those in the Clinical Negligence List as from the effective date irrespective of when proceedings commenced.

After providing for fully clarified pleadings and exchange of expert reports, paragraph 5 of the PD goes on to provide:

1. As a condition of applying for a trial date, the applicant must provide an undertaking to offer mediation to the opposing party or parties within three weeks of the date on which the trial date is fixed, to engage in such mediation within six weeks of the offer being accepted and, in the event that the initial offer is not accepted, to engage in mediation within six weeks of any subsequent offer of mediation made by the opposing party or parties prior to trial.
2. For the avoidance of doubt, the undertaking required by paragraph 5(d)(i) of this Practice Direction shall be taken to require the applicant and the opposing party or parties to engage constructively in any such mediation and to comply with all reasonable directions of the mediator, including the timely provision of position papers, legal submissions, or other documents in accordance with the timeframe specified by the mediator.
3. The requirements of paragraph 5(d) will not apply to an applicant who has satisfied the court that mediation will not assist the parties in achieving settlement.

Although sub-paragraph iii provides a get-out, on an argued application to the court (and perhaps this will look like a tough task), this virtually amounts to a requirement to mediate all clinical claims as the price of obtaining a trial date, to be undertaken very shortly after the trial date is given. Such specificity as to the process does not arise in England & Wales, where in the last year NHS Resolution reports having had 138 mediations of clinical claims while settling 14,000 claims. Perhaps Ireland has placed a higher intrinsic value on mediation in the clinical setting than currently obtains in England.

There has always been a close correspondence in approach between English and Irish courts. It will be interesting to see if this gets closer, with perhaps increasingly firm judicial insistence on its use in Ireland.

Sources

[1]  [2024] IEHC 308 , available in full on BAILII