Mediation has been long recognised in Ireland as an effective alternative form of dispute resolution. It has significantly grown in popularity in Ireland over the last decade, helped in no small part by the introduction of the Mediation Act 2017 (as amended; “the Act”), which gave it statutory support and recognition.

Mediation is defined under the Act as a “confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute”.

A mediator assists the parties in working through the issues in dispute to try to facilitate a mutually acceptable settlement. The mediator will gather information from the parties, facilitate the parties’ identification of common ground and scope for agreement, and act as a catalyst for problem solving. The mediator is not a decision maker, but a neutral third party chosen by the parties. A mediator will act with impartiality and integrity and treat the parties fairly throughout the mediation process.

Accordingly, a mediator is defined under the Act as “a person appointed under an agreement to mediate to assist the parties to the agreement to reach a mutually acceptable agreement to resolve the dispute the subject of the agreement”.

The mediation process is fundamentally different from litigation and arbitration in Ireland. Both litigation and arbitration are adversarial and procedurally formal, whereas mediation is a more informal, voluntary, easily accessible and flexible process. The main differences are addressed below.

Cost and time

Mediation is much more cost efficient than arbitration or litigation. Civil litigation can take many years and significant resources to reach a final resolution, whereas mediation is a much quicker dispute resolution process.

Arbitration, while often a quicker process than litigation, can be costly, with legal fees often reaching levels one would expect in High Court litigation.

Confidentiality

The Act provides that all communications (including oral statements) and notes relating to a mediation will be confidential and cannot be disclosed in any subsequent court proceedings. This is different from court proceedings in Ireland, which are (subject to limited exceptions) required to take place in public.

While the statutory protection of confidentiality is not replicated in the Arbitration Act 2010 in respect of Irish arbitrations, in practice, arbitrations are generally conducted in private unless otherwise agreed by the parties.

Process and procedure

The mediation process is more flexible than litigation. Court rules have been developed over decades to ensure consistent and formulaic procedures are adopted and followed by different cohorts of litigants in respect of different types of disputes. Such procedural rigidity is not a feature of mediation, which is a flexible and consensual process tailored to the particular dispute and parties.

While parties to arbitration enjoy wide discretion in determining which procedural rules will apply to the process, the procedure often mirrors the formalities of litigation. For example, arbitrations generally involve an exchange of quasi-pleadings, a document disclosure process, and the giving of evidence by factual and expert witnesses.

Decision maker

Unlike litigation, both mediation and arbitration provide the parties with the opportunity to select the facilitator/decision maker. However, the outcome of litigation and arbitration will be determined by an analysis of legal rights and remedies by a third-party decision maker. In contrast, mediation provides the parties with an opportunity to explore more innovative solutions, by reference to the issues that are important to them. While litigation and arbitration guarantee that a resolution will be provided upon conclusion, an outcome/resolution is not guaranteed in mediation as the mediator is not a decision maker but a neutral facilitator for the parties.

Mediation is given statutory footing in Irish civil proceedings through the Mediation Act 2017 (as amended). It has, for some time, been recognised that traditional litigation is costly, is protracted, and is often accompanied by considerable stress and acrimony. The purpose of the Act was to promote the resolution of disputes through mediation as a more cost effective and efficient alternative to conventional court proceedings.

The Act places on a statutory footing the obligation to consider mediation before issuing legal proceedings. The main provisions of the Act (which are discussed in more detail later in this chapter) are as follows:

• The Act includes a statutory obligation for solicitors to advise all clients engaged in legal proceedings to consider mediation as an alternative means of dispute resolution.
• The Act clarifies the role of the mediator to assist the parties in seeking a mutual resolution of the dispute.
• Confidentiality of the mediation process, including in respect of all written and oral statements, is given statutory protection under the Act. There are limited exceptions to this protection, which are provided for in section 10 of the Act.
• The Act requires parties to put in place a mediation agreement before the mediation takes place. The execution of an “agreement to mediate” will temporarily stop the clock from running under the Statute of Limitations from the date of signing until 30 days after the mediation process concludes.

Yes. This is evident from the approach of the Irish Courts and the introduction of the Act, which aims to promote mediation as an alternative to litigation.

The Irish Court has long been supportive of mediation as an alternative form of dispute resolution. In Galway City Council v. Samuel Kingston Construction Limited [2010] 3 IR 95, O’Donnell J., as he then was, encouraged the consideration of alternatives to litigation. Similarly, in Lyons v. Financial Services Ombudsman [2011] IEHC 454, Hogan J. opined that “mediation is a thousand times preferable than litigation”.

While the Act does not obligate parties to mediate disputes, it imposes an obligation to consider mediation before commencing litigation. In that regard, it places a legal obligation on solicitors in Ireland to advise clients to consider mediation as a means of alternative dispute resolutions prior to issuing proceedings. To satisfy this statutory obligation, a solicitor is required to swear a statutory declaration to the court evidencing that they have provided their client with information in respect of mediation services, the advantages and benefits of mediation, and the voluntary nature of the process (the “Mediation Certificate”).

If court proceedings are issued without a Mediation Certificate being filed by the applicants’ solicitor, the court is required to adjourn the proceedings for such a period as it considers reasonable to enable a Mediation Certificate to be filed.

While this is a mandatory requirement under the Act (i.e., “the Court shall”), the jurisprudence suggests that in practice the court does have discretion in respect of exercising this power. For example, in Derbar Developments v. Companies Act [2022] IEHC 709, Sanfey J., in considering an application by a creditor to restore a company to the register, rejected the notion that there was an obligation on the applicant’s solicitor to advise its client on mediation in circumstances where the proceedings at issue would be unsuited to the mediation process.

The courts cannot mandate parties to mediate in Ireland. As stated by Gilligan J. in the High Court in Atlantic Shellfish v. Cork County Council [2015] IEHC 570, “[n]o party should be forced to attend mediation, as the bedrock of the procedure is to bring together the willing participants who wish to try to mediate a solution to the dispute that separates them”.

However, under section 16 of the Act, a court may (of its own motion or on application from a party to the proceedings) invite the parties to consider mediation and/or provide the parties with information about the benefits of mediation.

Separately, under Order 63A, Rule 6(1)(xiii) of the Rules of the Superior Courts, the Commercial Court (a division of the High Court that is designed to case manage and progress proceedings expeditiously) has the power to adjourn proceedings for up to 28 days to allow the parties time to consider whether the proceedings ought to be referred to mediation. The court is permitted under the Court Rules to make this order of its own motion or can do so on application from one or both of the parties.

While the court cannot mandate parties to mediate a dispute, a party’s conduct and/or approach to proceedings are factors which the court may take into account when determining the issue of costs. This may include a party’s unreasonable refusal to mediate a dispute. Aside from cost implications, a court does not have jurisdiction to penalise a party for a failure to engage in mediation. As Butler J. observed in I.E.G.P. Management CLG v. Cosgrave [2022] IEHC 175, the “real bite” of the Act is the discretion of the court to impose costs penalties on parties.

Under section 21 of the Act, when making an award of costs, a court may have regard to any unreasonable refusal or failure by a party to consider or attend mediation following an invitation to do so by the court. This principle has been echoed in Order 99 of the Rules of the Superior Court and section 169(1)(g) of the Legal Services Regulation Act 2015. Both provisions are exceptions to the normal rule that costs follow the event, and therefore even a party who is entirely successful in its claim may be subject to a cost penalty where they have unreasonably refused the court’s invitation to mediate.

In Mascarenhas v. Karim [2022] IECA 48, the Court of Appeal found that an applicant who had been entirely successful in his claim might have been subject to a 10% cost penalty due to his dishonesty before the High Court but for the other party’s conduct, including their repeated refusal to agree to mediation at the request of the applicant: “I would normally therefore reduce the applicant’s costs by 10% as reflecting an appropriate sanction for this conduct. However, the appellants have equally conducted the litigation in a manner which this court cannot condone and they twice refused the opportunity to resolve the dispute by mediation. For this reason, I would not in fact make any deduction from the costs of the applicant in conducting the two appeals” (emphasis added).

More recently, in Byrne v. Arnold [2024] IEHC 308, Kennedy J. held that a solicitor’s failure to file a Mediation Certificate was a relevant consideration in deciding a costs application. In that judgment, the court ordered a 5% reduction on the “party and party” costs award primarily to reflect the solicitors default, commenting that: “if such a failure to comply with section 14 were to occur in future, the court may adjourn a hearing (at the Plaintiffs’ expense) and stay the proceedings until the obligations had been discharged. Significant cost sanctions will be likely in any event. I did consider whether a deduction of the order of 10–15% might be appropriate. However, I propose to make a relatively modest reduction to any cost order in the Plaintiffs’ favour on this occasion. Courts may be less lenient in future.” (emphasis added).

Mediation can take place at any time before or during court proceedings. The Act confirms that the fact that proceedings have been issued shall not prevent the parties engaging in mediation at any time prior to the resolution of the dispute.

The issue of timing of referral to mediation was considered by Costello J. in Grant v. Minister for Communication [2016] IEHC 328, in which the Judge noted that in his experience, a dispute was “most likely to be resolved by mediation after the pleadings are closed but before the parties have incurred the expense of complying with discovery”. This dictum is in line with our experience of mediation in Ireland, in which parties often consider mediation at the outset of proceedings and then again before discovery, given the high costs associated with a discovery process. That said, mediation can happen at any time. In some circumstances, the documents disclosed during the discovery process can be a catalyst which encourages parties towards mediation.

From a practical perspective, once parties enter into a mediation agreement, the limitation periods under the Statute of Limitations are suspended from the date of execution until 30 days after a settlement agreement is signed or the date the mediation is terminated (whichever is later). Following execution of a mediation agreement, either party may apply to the court to adjourn the proceedings pending the outcome of the mediation process. In our experience, the courts are very receptive to an attempt by parties to seek to resolve disputes through mediation.

The decision to mediate depends on the circumstances and dynamics of the dispute and the parties involved. The statutory regime envisages mediation being applicable to all civil disputes (subject to the limited exceptions). While a solicitor is obliged to advise their client of mediation prior to initiating proceedings, in practice, certain disputes may be more amenable to mediation than others.

The nature and stage of the dispute, and the specific parties involved will all factor into the decision whether to mediate. For example, disputes involving an ongoing commercial relationship often lend themselves more favourably to the flexibility and confidentiality of the mediation process. In any event, mediation is only likely to be successful if both parties believe that the other side will engage in the process in good faith.

It was acknowledged by the Irish Courts in Atlantic Shellfish v. Cork County Council [2015] IECA 283 that not all types of disputes are amenable to mediation. While Irvine J. in the Court of Appeal accepted that “there is public interest in exploring whether complex litigation can be resolved outside the confines of the court”, she acknowledged that “there will always be litigation which by reason of the nature of the dispute is not readily amenable to ADR [alternative dispute resolution]”. In those proceedings, the court held that mediation would not be appropriate to determine a dispute in relation to a novel point of law.

The majority of civil disputes in Ireland can be referred to mediation. The Act does expressly exclude certain types of disputes from its remit, which are set out below. While commercial fraud disputes are not expressly excluded under the Act, mediation is likely to be unsuitable for such cases given the nature of the dispute and remedies which will often be sought.

The Act precludes the following categories of dispute from being referred to mediation under the Act:

• disputes which have been referred to arbitration;
• employment disputes which fall within the remit of the Workplace Relations Commission;
• certain tax disputes which fall within the jurisdiction of the Tax Appeal Commission and/or the High Court;
• judicial review proceedings;
• disputes against the state in respect of fundamental rights and freedoms of a person;
• domestic violence disputes;
• certain types of family law disputes; and
• certain proceedings under customs legislation.

While the Minister for Justice and Equality retains the power to prescribe further categories of dispute to which the Act shall not apply, this discretion is yet to be exercised.

In Irish commercial contracts, it is common to see a tiered dispute resolution clause which involves an escalated series of steps to be taken in the event of a dispute. Often, such clauses will first require parties to engage in negotiation, thereafter, to consider mediation and, if the dispute persists, to refer to litigation or arbitration. The rationale for this tiered approach is to invite parties to first consider more efficient and less costly methods of dispute resolution before incurring the considerable costs associated with arbitration or litigation.

The position of the Irish courts, as articulated by Keane C.J. in Re Via Net Works (Ireland) Limited [2002] 2 IR 47, is that parties who agree to a specific dispute resolution procedure must “show good reason” to justify the court’s intervention. Similarly, in HSE v. Keogh [2009] IEHC 419, the court refused to hear an application for interlocutory relief where there was “no good reason for the parties departing from the dispute resolution mechanisms provided for” in the contract.

It is notable, however, that the Irish jurisprudence in relation to the enforceability of dispute resolution clauses has only arisen in relation to arbitration clauses or expert determination, both of which are processes which involve a third-party decision maker.

The Mediation Agreement

Prior to the commencement of a mediation, the parties and the proposed mediator will enter into an “agreement to mediate”. The terms of a mediation agreement are contractually enforceable. The standard terms of such agreement will include:

• selection and appointment of the mediator;
• confirmation of the mediator’s fees and payment terms;
• confidentiality undertaking;
• venue and logistics for the mediation; and
• timetable for the mediation, including exchange of position papers in advance of mediation.

The Settlement Agreement

If a resolution is reached during mediation and it is agreed that the settlement should be enforceable, the outcome will only be legally binding once the agreed settlement is recorded in writing and signed by the parties.

The terms of a settlement agreement will depend on the resolution reached at the mediation but will often include boilerplate clauses in relation to confidentiality and an agreement to discontinue any related court proceedings.

Once signed, the settlement agreement has the same effect as a contract between the parties and can be enforced by application to the court.

The main mediator accreditation bodies in Ireland are:

• Centre for Effective Dispute Resolution (cedr.com/event/mediator-skills-training).
• Mediation Foundation of Ireland (mfi.ie).
• Mediators’ Institute of Ireland (themii.ie/training/accredited-mediation-training).
• International Mediation Institute (imimediation.org/about).

There is currently no single governing body for mediators in Ireland. While section 12 of the Act provides for the possible establishment of a “Mediation Council”, such a body has not (as of 1 January 2025) been established. It was confirmed in July 2024 by the Minister for Justice that a Mediation Council Shadow Group had convened and was working towards the establishment of a Mediation Council, but no progress has since been reported.

The purpose of a Mediation Council, as expressed in the Schedule to the Act, will be to promote awareness of mediation and to maintain and develop standards and codes of practice for mediation/mediators.

Under section 9 of the Act, the Minister for Justice is required to publish a code of conduct for mediators practising in Ireland, however, such code is yet to be published.

As there is no single governing body for mediators in Ireland, each mediator is accredited by a private body (as discussed above), which requires members to abide by their prescribed codes of practice. In general, these ethical codes of conduct ensure mediators act with honesty, fairness and objectivity.

The Act itself also imposes certain ethical obligations on a mediator, including obligations:

• to act with impartiality and integrity;
• to treat the parties fairly; and
• not to act in circumstances where they are conflicted, whether such conflicts arise at the outset or during the mediation process.

One of the advantages of mediation in Ireland is that the process is flexible and can be determined and agreed by the parties to accommodate their individual requirements and the particular nuances of the dispute in question.

However, in general, the mediation process will include the following stages:

• The preliminary phase of mediation will involve appointing a mediator, agreeing the terms of the mediation agreement, and organising logistics and practicalities for the mediation itself. The parties will often prepare position papers (i.e., case summaries) and a list of agreed documents may also be shared with the mediator.
• On the day of the mediation, the parties will be set up in separate rooms. The mediator will shuttle between the rooms and speak with the parties on a confidential basis, to explore and understand the positions and interests of each party. The mediator will develop a rapport with the parties with the aim of identifying a foundation for negotiation and the exchange of information.
• Over the course of the mediation, the parties will start to share information with the other party through the mediator, and negotiations can begin. During this process, the parties will explore the potential resolution of the issues in dispute. One of the advantages of mediation is that a resolution is not limited to monetary payment but may include other valuable outcomes, for example, continuance of a commercial relationship.
• Ideally, a mutually agreeable resolution will be reached, and the parties will agree to the terms of a settlement. Such agreement can be prepared and executed at the mediation itself, or in the days thereafter.

The mediation process in Ireland is easily accessible to all. For commercial litigants, mediations can be complex and involve legal advisors. However, for individuals, many public bodies, including the Financial Service and Pensions Ombudsman, invite consumers to attend mediation to facilitate the early resolution of disputes with regulated entities (i.e., insurers, pensions providers, banks).

There is a general awareness in the legal profession and more generally in relation to the benefits of mediation. Mediation has a proven track record in Ireland for resolving disputes where negotiations may not succeed. Since the commencement of the Act, the profile of mediation as an alternative form of dispute resolution has significantly increased in Ireland.

However, there can be misconceptions in relation to the role of a mediator and the process of mediation. For example, mediation and negotiation are often conflated. Similarly, parties often fail to appreciate that a mediator is a facilitator and not a decision maker.

The introduction of the Act and the statutory obligation on solicitors to provide their clients with information about mediation including the process and the benefits, means that these misconceptions can be addressed at an early stage of a dispute arising.

The advantages of mediation far outweigh the perceived disadvantages in this jurisdiction.

The main advantages are:

• It saves time and costs. Mediation is significantly quicker and cheaper than litigation. The Act places an obligation on parties to mediation to “make every reasonable effort” to conclude the mediation in an “expeditious manner which is likely to minimise costs”.
• It saves relationships. Mediation is a flexible and voluntary process and therefore can, in practice, be more constructive than litigation or arbitration, which is often win/lose. The benefit of this is that commercial relationships can often survive mediation, whereas this is less likely in litigation given the adversarial nature of the process and the associated costs. Therefore, mediation often achieves a more positive outcome in terms of the parties’ future relationships.
• Creative solutions. The “solutions” that can be reached through mediation can be more creative than those that a court or tribunal may have jurisdiction to award. For example, an apology in a contentious dispute can be a valuable bargaining chip in reaching a resolution in mediation.
• It brings flexibility. The parties to mediation determine the process to be followed. There are no strict procedural requirements for a mediation process. It is a voluntary process involving confidential negotiations between parties with the assistance of a neutral intermediatory.
• Confidentiality. Discussions during the mediation process are without prejudice, i.e., “off the record”. This means that anything which is said during mediation cannot be used in any subsequent process (e.g., litigation or arbitration) if the mediation is not successful. For completeness, we note that there are certain exceptions to this prescribed under the Act, including in circumstances where disclosure is required by law.

Conversely, the perceived disadvantage of mediation is that an outcome/resolution is not guaranteed. As the mediation process is voluntary, a party may at any point walk away from the mediation and resume legal proceedings.

Yes, mediations in Ireland can take place remotely. However, in our experience there is benefit to an in-person mediation, particularly in contentious disputes. While parties will usually remain in separate rooms on the day of mediation, having all parties present in person offers the mediator the option to bring certain cohorts together (e.g., principals, lawyers, etc.) in an attempt to try to distil the issues in dispute.

There has been a noticeable upward trend in the use of mediation in Ireland. This growth has been bolstered by the introduction of the Act and the positive approach of the Irish judiciary to mediation as an alternative to court proceedings.

There has been an increase in the use of mediation since COVID-19; however, we believe this is reflective of pre-existing market trends. While the pandemic has increased the frequency of remote mediations, we do not think the upward trajectory of mediation in Ireland overall is a by-product of the pandemic.

As with all areas of the legal profession, mediation is ever developing alongside technology. However, given that the use of AI in legal proceedings is still in its infancy in Ireland, we have not seen anything material to date which would suggest that AI is currently being used in any substantive or transformative way in the mediation space. However, as the use of AI in the legal services sector continues to grow, we suspect that AI will start to play a greater role in all forms of dispute resolution, including mediation.