There is “systemic non-compliance” among Irish solicitors with their legal obligations in relation to the mediation of disputes, a new qualitative research study found.
Almost eight out of 10 (78 per cent) think there is a general fear within the profession that solicitors will earn reduced fees if they mediate and that alternative dispute resolution (ADR) stands for “alarming drop in revenues” for lawyers, notes the research.
Carried out by Bill Holohan, a certified mediator, solicitor and senior counsel, the research concerned solicitor obligations under section 14 of the Mediation Act 2017.
Holohan analysed data from detailed interviews with 55 solicitors in 2023 as part of his 2025 PhD Law thesis examining the attitude and knowledge of practising solicitors towards, and of mediation, and of the 2017 Act.
READ MORE
While stating it would be unsafe to suggest his findings are indicative of the position among the State’s 12,000 practising solicitors, he considered the geographical, age, gender and law firm size spread among interviewees could provide “a broad range of results”.
Among his conclusions, he considered the goals of the Act are being “significantly impeded” by deficits in professional knowledge, “cultural resistance” and “systemic non-compliance”.
The solicitor interviewees had reported that about 94 per cent of clients, when fully advised about the option, favour mediation.
Holohan said an “overwhelming majority” of solicitors (84 per cent) would be happy to agree to mediation unless there is a “good and valid” reason not to do so. Clients very often rely upon their solicitor’s advice in deciding whether or not to mediate, he noted.
However, despite their statutory obligations under the 2017 Act to advise clients regarding mediation, only 27 per cent considered that they could give comprehensive advice on mediation to clients.
Other findings include that 49 per cent provide some information to clients and almost 30 per cent are either opposed or indifferent to mediation.
This “pervasive selective approach” is largely influenced by varying levels of knowledge about mediation and “entrenched attitudes”, Holohan concluded.
Further education and training are required to address this, he said.
Holohan presented his key findings and conclusions last week at the annual conference in Dublin of the Irish Professional Mediation Organisation.
Holohan said ignorance and/or lack of knowledge about mediation is primarily because of legal deficits in legal education and training, coupled with the fear that the acronym ADR in effect means “alarming drop in revenues” and practising lawyers will earn less if disputes/litigation are resolved at an earlier stage of proceedings.
Some more experienced practitioners took the view that a lesser fee for a better and less time-consuming process actually turns out to be more profitable, Holohan noted.
Holohan said his research has “significant” implications.
Failure by solicitors to properly and adequately advise clients at the outset in relation to the option to mediate may result in unnecessary legal costs being incurred by all parties to the proceedings and delay dispute resolution, he said.
“Such delay and additional expense may also be the cause of unnecessary and avoidable ongoing stress and anxiety to the client.”
The research noted fees sought by solicitors and junior counsel for mediations ranged from under €3,000 up to €10,000, while fees sought for one day’s mediation by senior counsel and retired judges exceeded €10,000 in about 45 per cent of cases. A €22,000 fee was sought in one case, one interviewee said.
The level of fees sought by non-lawyer mediators was less than €3,000 in about 44 per cent of cases.
The 2017 Act, Holohan’s thesis notes, empowers judges to make adverse costs orders or otherwise penalise those clients and lawyers whom the court believed had unreasonably failed to consider mediation.
It referred to a significant 2024 decision by High Court Judge Liam Kennedy imposing a 5 per cent penalty in recoverable costs on the plaintiffs involved because of their solicitors’ failure to comply with the Act’s requirement to advise their client, before commencing proceedings, about the advantages and benefits of mediation.
