Back to the future: An Overview of Mediation in Ireland

Reviewed by faculty from the School of Law

The process of mediation stands as an inherently flexible method of resolving disputes in the absence of court proceedings.[1] In its infancy, the process was feared by some for reasons which will be outlined in this article. The staggering growth in popularity was in part triggered by the establishment of the Commercial Court with many of the once formidable aspects being dispelled by the enactment of the Mediation Act 2017 (hereinafter “the Act”). This article will give readers an overview of mediation while offering an exposé of its status as a popular method of alternative dispute resolution. The final part of this article will explore the future of mediation in Ireland from amendments to the current Act to a possible signing of the Singapore Convention on Mediation.  

Before attempting to navigate the future of mediation in Ireland, it seems fitting to revisit the principles that form the backbone of mediation. At all times, mediation must be a confidential process in the absence of any prejudice.[2]Mediation must also be voluntary with all three of these principles being ‘indispensable’.[3] At this juncture, it is worth addressing rule 6(1)(xiii) of Order 63A which permits the Judge of the Commercial Court to adjourn a case for mediation or for the parties to request such adjournment. At first glance, the ability of a Judge to adjourn a case for mediation would seem to conflict with the voluntary aspect of mediation. Dowling has pointed out that this is an ‘encouragement’ and should not override the voluntary nature of mediation.[4] The importance of voluntariness was reverberated by the Court of Appeal in England in Halsey v Milton Keynes General NHS Trust.[5] When it comes to confidentiality, Hoffman is correct in his assessment that the requirement is twofold.[6] A mediator cannot disclose what was said outside of mediation and cannot reveal to one party what another has said in private.[7]

There is little difficulty in understanding why mediation has grown in popularity. Indeed, the most obvious benefit was clear in the remarks made by Keane J in Greencore Plc v Murphy[8] where it was highlighted that mediation allows for a settlement without reverting to litigation. When contrasted with court proceedings, mediation is a relatively quick process with the average commercial mediation lasting not more than two days.[9] It is submitted that mediation is also of benefit to court services in Ireland. The more cases that are resolved via mediation will reduce court backlogs and allow more cases (where mediation is not an option) to be heard. This would be a major benefit as indicated by Irvine J in Atlantic Shellfish Ltd[10] where concerns of ‘scarce judicial resources’ were expressed.[11]

After offering a concise summation of some of the advantages that come with mediation, one wonders why the dice should ever be rolled with court proceedings. Despite its advantages, mediation is not without fault. The cost-saving element attached to mediation comes with the caveat that it is contingent on an agreement being reached. Nevertheless, Dowling[12] has highlighted that failure to settle does not remove the possibility of ‘substantial progress’ being made as was the case in Kay-El (Hong Kong) Ltd v Musgrave Ltd.[13] This is similar to the view of Coulson J in Fitzmore Robinson Ltd v Mentmore Towers Ltd[14] that even though mediation may not have worked, it would have narrowed the issues and proven to be beneficial.[15] In some cases, individuals may feel that they do not have the same protection as they would have in a court room. As Sammon highlights mediation is a process conducted in the shadow of the law, characterised by uncertainty.[16]

When it comes to mediation, the pros outweigh the cons. The significant increase in the number of disputes settled by way of mediation is partially attributable to the Act introduced in 2017. Instructing solicitors are now required to inform their clients of the option to mediate in lieu of court proceedings as set out in Section 14. Section 10 of the Act also affords statutory protection to the confidential aspect of mediation which is undoubtedly a welcome change. Kelly J has noted that the Act is not perfect as it does not exclude forms of legislation that are not suitable for mediation.[17] Sammon has pointed out that the Act also fails to address the issue of professional negligence in respect of mediators with a claim in the law of torts rendered near impossible due to the absence of universal standards.[18] Sammon also notes that a similar position exists in the law of contract as few mediation agreements will refer to the specific role and skills of the mediator but rather details such as location and dates.[19] It is submitted that these are areas which require modification to catapult mediation to new heights in Ireland as it still carries with it some disadvantages. 

In September 2020, the Singapore Convention on Mediation took effect with the goal of eliminating existing barriers to the enforcement of agreements settled at mediation by creating a uniform framework.[20]At the time of writing, there are 53 signatories including China, the U.S. and India. To date, Ireland has not signed the agreement. It seems the convention is somewhat similar to Directive 2008/52 in its focus on cross border disputes. In a 2016 report from the European Commission, it was revealed that the impact the Directive had on different member states varied depending on the pre-existing mediation system in place.[21] As for the Irish system, the enactment of the 2017 Act was a step forward and hints that mediation in Ireland is continuing to travel a virtuous path. 

The days of mediation being treated with mass suspicion appear to be behind us and there is no doubt that mediation will continue to serve as a useful method of alternative dispute resolution.[22] Beneath its ability to resolve disputes are the core principles of confidentiality, voluntariness, and the absence of prejudice. One of the reasons for the growth of mediation in the commercial context is undoubtedly linked to Dowling’s view that it is inherently flexible and has the potential to deal with disputes involving multiple parties.[23] In the aftermath of the Directive 2008/52,[24] Kelly J commented that ‘commercial mediation is here to stay’.[25] Eleven years on, it seems as though this is just the beginning for mediation in Ireland. 

[1] Stephen Dowling, The Commercial Court (1st edn, Round Hall 2007).

[2] Bobette Wolski, ‘Confidentiality and Privilege in Mediation: Concepts in need of better regulation and explanation’ (2020) 43(4) UNSW Law Journal.

[3] Vicky De Mesmaecker, ‘Victim-offender mediation participants’ opinions on the restorative justice values of confidentiality, impartiality and voluntariness’ (2015) 1(3) Restorative Justice. 

[4] Stephen Dowling, The Commercial Court (1st edn, Round Hall 2007) 258.

[5] Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 2002, [2004] 4 All ER 920. 

[6] David A. Hoffman, ‘Ten Principles of Mediation Ethics’ (2005) https://blc.law/wp-content/uploads/2016/12/2005-07-mediation-ethics-branchmainlanguagedefault.pdf

[7] ibid 

[8] Greencore Plc v Murphy [1995] 3 IR 520.

[9] Stephen Dowling, The Commercial Court (1st edn, Round Hall 2007) 271. 

[10] Atlantic Shellfish Ltd & Anor v The County Council of the County of Cork & Ors [2015] IECA 283, [2015] 2 IR 575.

[11] ibid at 52

[12] Stephen Dowling, The Commercial Court (1st edn, Round Hall 2007).

[13] Kay-El (Hong Kong) Ltd v Musgrave Ltd [2005] IEHC 418, [2005] 12 JIC 0201.

[14] Fitzmore Robinson Ltd v Mentmore Towers Ltd [2009] EWHC 1552.

[15] Law Reform Commission, Alternative Dispute Resolution: Mediation and Conciliation (LRC 98-2010) 80. 

[16] Garret Sammon, ‘Mediation in Ireland: Policy Problems’ (2017) 57(57) The Irish Jurist.

[17] ‘The 4 factors that can facilitate mediation’ (Law Society Gazette, 29 March 2019) https://www.lawsociety.ie/gazette/top-stories/4-factors-that-facilitate-mediation/

[18] Garret Sammon, ‘The Mediation Act 2017’ (2017) 58(58) The Irish Jurist.

[19] ibid

[20] Singapore Convention on Mediation https://www.singaporeconvention.org/convention/about-convention/

[21] European Commission, Report on the application of Directive 2008/52/52 of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters (COM/2016/0542).

[22] Peter Kelly, ‘Alternative Dispute Resolution and the Commercial Court’ (2010) 2 Arbitration and ADR Review 92.

[23] Stephen Dowling, The Commercial Court (1st edn, Round Hall 2007).

[24] Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters.

[25] Peter Kelly, ‘Alternative Dispute Resolution and the Commercial Court’ (2010) 2 Arbitration and ADR Review 92.