The courts expect parties to “engage meaningfully” with mediation of civil disputes, the president of the High Court has said.
The courts system will “actively facilitate” that engagement and has moved towards “embedding” mediation as an expected step to be taken by parties in many areas, Judge David Barniville said.
While judges cannot compel parties to mediate, decisions since the introduction of the Mediation Act 2017 – which provided a statutory basis for mediation in civil disputes – show there may be costs penalties where a court decides a failure to consider mediation was unreasonable, he said.
The courts, he stressed, will always be “the forum of last resort” and the right of access to the courts for the determination of disputes which either cannot be, or have not been, resolved between the parties is “fundamental”.
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The future direction of travel is not where mediation replaces litigation, but where both operate in tandem to create a “more responsive and sustainable” civil justice system.
The General Scheme of the Civil Reform Bill 2025, currently undergoing pre-legislative scrutiny, provides further evidence of the policy move towards centring alternative dispute resolution (ADR) as the “first port of call” in disputes of a civil nature, he said.
Barniville made the remarks during an address on Thursday to the annual conference of the Irish Professional Mediators’ Organisation (IPMO) in Dublin.
Dr Róisín O’Shea, chair of the IPMO, called for assistance from Government to establish the Mediation Council of Ireland. The 2017 Act provides for the establishment of the council to oversee standards and training but that provision has yet to be fully operational.
“Mediation can resolve the majority of civil disputes faster, at less cost, confidentially, and often the agreement can be more creative than the courts can order,” she said.
Noting the Act has been in place for eight years, she urged Government to assist in getting over the “final hurdle”, the establishment of the council. “We are finally ready for this cultural shift, where mediation becomes the very first resort in dispute resolution.”
On probate disputes, O’Shea said, where there is no will, or there is a dispute over a will, a mediator can work with all the beneficiaries to find mutually agreed solutions so that probate can be completed. “There has been a significant increase in probate dispute enquiries to our practice, as there is a greater awareness of how quickly and cost-effectively mediation can address such disputes.”
