I, David Barniville, President of the High Court, hereby issue the following Practice Direction in accordance with the general authority of the President of the High Court and s. 11(12) and (13) of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020.
Purpose of this Practice Direction
1. This Practice Direction is intended to bring to the attention of practitioners and litigants certain provisions of the Mediation Act 2017 (the “2017 Act”), and similar provisions in other statutes, relating to mediation and alternative dispute resolution (“ADR”), to emphasise the need for compliance with such provisions and to flag the potential consequences of non-compliance.
2. This Practice Direction is intended to supplement and not to duplicate or displace existing practice directions and procedural requirements relating to mediation, including Practice Direction HC 131 (Clinical Negligence Actions – Applications for Trial Dates). The obligations addressed in this Practice Direction arise primarily at the pre-issue stage, and include the statutory obligations imposed on solicitors by section 14 of the 2017 Act. Compliance with those duties does not of itself satisfy the obligations arising under Practice Direction HC 131, which operates as a later procedural stage and is concerned with party engagement with mediation once proceedings are sufficiently advanced. Practitioners should also be aware, as part of the wider statutory context, of the inclusion of guiding principles relating to the resolution of disputes, including references to mediation and other appropriate ADR mechanisms, in section 8 of the Family Courts Act 2024 (while noting that that provision has not yet been commenced as of the date of this Practice Direction).
3. This Practice Direction is also without prejudice to any specific Practice Direction or procedure concerning mediation or ADR which may be issued or adopted in particular lists of the High Court.
Date of Commencement
4. This Practice Direction will come into operation on 3 June 2026.
The Mediation Act 2017
5. The 2017 Act is intended to “facilitate the settlement of disputes by mediation.” It applies to all civil proceedings, save for those categories of proceedings specified in section 3(1) of the 2017 Act. For convenience, section 3(1) (as amended) is set out in Schedule 1 to this Practice Direction. Section 3(1)(j) provides that other disputes or proceedings relating to such disputes may be prescribed for the purposes of section 3(1). However, no regulation prescribing any other dispute or proceedings has been made to date.
Part 3 of the 2017 Act
6. Part 3 of the 2017 Act imposes significant obligations on practising solicitors as regards mediation (Part 3 also applies to practising barristers in certain circumstances but those circumstances do not currently exist). Section 14 applies to all “proceedings” within the scope of the 2017 Act, with the exception of proceedings (including any application) under:
a) sections 6A, 11 or 11B of the Guardianship of Infants 1964,
b) section 2 of the Judicial Separation and Family Law Reform Act 1989 or
c) section 5 of the Family Law (Divorce) Act 1996.
7. Section 14(1) requires a practising solicitor, prior to issuing proceedings on behalf of a client, to do the following:
“(a) advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings,
(b) provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services,
(c) provide the client with information about—
(i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and
(ii) the benefits of mediation,
(d) advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk, and
(e) inform the client of the matters referred to in subsections (2) and (3) and sections 10 and 11.”
8. Section 14(2) of the 2017 Act provides that if a practising solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted “shall be accompanied by a statutory declaration made by the solicitor evidencing (if such be the case) that the solicitor has performed the obligations imposed on him or her under subsection (1) in relation to the client and the proceedings to which the declaration relates.” Section 14(3) then provides that, if the originating document is not accompanied by such a statutory declaration, then the Court “shall adjourn the proceedings for such period as it considers reasonable in the circumstances” to enable the requirements of section 14(1) to be complied with. This is framed in mandatory terms.
9. Sections 10 and 11 of the 2017 Act deal respectively with the confidentiality of the mediation process and the enforceability of mediation settlements.
10. Section 14 imposes mandatory obligations on practising solicitors who are instructed to issue proceedings within the scope of that section or asked to advise in relation to the institution of such proceedings. The importance of proper compliance with section 14 has recently been emphasised by the High Court in Byrne v. Arnold [2024] IEHC 308 and V Media Doo & First Click Marketing Operations Management Limited v. Techads Media Ltd [2025] IEHC 430. Both decisions emphasise the public interest in encouraging alternatives to litigation and the need for clients to be properly advised of the benefits of mediation.
11. In Byrne v. Arnold, the High Court (Kennedy J.) held that the costs recoverable by the successful party should be reduced by reason of non-compliance with section 14. While that reduction was relatively modest (5%), it was noted that courts might be less lenient in future.
12. In V Media Doo & First Click Marketing Operations Management Limited v. Techads Media Ltd, the High Court (Twomey J.) stressed that compliance with section 14, including the completion of the required statutory declaration, is not a “box-ticking” exercise, as well as emphasising that, in the absence of evidence of compliance with section 14, the court must adjourn proceedings to enable the statutory requirements to be complied with.
13. It must be stressed, therefore, to all practitioners and litigants that compliance with section 14 of the 2017 Act is mandatory. Non-compliance may have significant adverse consequences in terms of delay and wasted costs and these consequences may ultimately have to be borne by the defaulting solicitor. Non-compliance may potentially also have regulatory implications. All practising solicitors should, therefore, ensure timely and proper compliance with the requirements that have been laid down by the Oireachtas.
14. In proceedings within the scope of that section, practitioners acting for the claimant, plaintiff or applicant (the “claimant”) should not seek a hearing date for the proceedings, or any application in the proceedings, without first confirming that the requirements of section 14 – including the requirement to complete and file the statutory declaration provided for in section 14(2) – have been complied with.
15. For completeness, although the 2017 Act imposes express duties on claimants’ solicitors, solicitors acting for defendants/respondents are also subject to ethical and professional obligations to act in their clients’ best interests and to advise them of the options available to resolve any dispute so as to enable such clients to make a fully informed decision as to how best to proceed. While a client (whether a claimant or defendant/respondent) may or may not choose to negotiate or engage in mediation, it is important that its decision is fully informed and that its legal advisors’ obligations to act in the client’s best interests encompass an obligation to ensure that the client is fully informed in that regard.
Part 4 of the 2017 Act
16. Part 4 of the 2017 Act gives the court an important role in encouraging recourse to mediation. Section 16(1) of the Act provides that a court “may, on the application of a party involved in proceedings, or of its own motion, where it considers it appropriate having regard to all the circumstances of the case” invite the parties to the proceedings to consider mediation as a means of attempting to resolve the dispute the subject of the proceedings and provide information to the parties about the benefits of mediation. Where such an invitation issues and is accepted, the court may adjourn the proceedings and make any other order as it considers necessary to facilitate the mediation: section 16(2).
17. Section 6(2) of the 2017 Act makes it clear that participation in mediation is at all times voluntary. Nevertheless, section 21 of the Act expressly provides that an unreasonable refusal or failure by a party to proceedings to consider using mediation or an unreasonable refusal or failure by a party to attend mediation following an invitation to do so under section 16(1) is a factor to which the court may, where it considers it just, have regard in awarding costs. Section 169(1)(g) of the Legal Practitioners Regulation Act 2015 is to similar effect.
18. Any unreasonable refusal or failure by a party to engage with mediation when invited to do so may, therefore, have adverse costs consequences for that party, even if that party is wholly successful in the proceedings. It is important, therefore, that throughout the course of proceedings and, particularly where a court decides to exercise its power to invite parties to consider using mediation (whether on application or on its own motion), the parties and their legal representatives (if any) should consider that invitation carefully. In that context, it is important to bear in mind that even the most intractable disputes may be capable of resolution in a mediation process and that, even if it is not possible to achieve an immediate resolution of all issues in dispute, mediation may serve to reduce the areas of dispute, as well as providing a basis for subsequent resolution of any outstanding issues.
Other Provisions relating to Mediation and ADR
19. There are a number of other instruments and enactments which contain important provisions relating to mediation and ADR.
20. Order 56A, rule 10 of the Rules of the Superior Courts (as substituted by S.I. No. 13 of 2018 - Rules of the Superior Courts (Mediation) 2018) empowers the court to invite parties to consider mediation or another approved ADR process, and where the parties decide to engage, the court may adjourn proceedings and make orders to facilitate the effective use of that process. The Order also provides a procedural mechanism for enforcing a mediation settlement by court order on application by a party.
21. Order 63A, rule 6(1)(xiii) of the Rules of the Superior Courts permits the judge at the initial directions hearing in commercial proceedings to adjourn the proceedings or any issue in the proceedings for up to 28 days to allow the parties time to consider referral to mediation, conciliation, or arbitration. Under rule 6(2)(d), the judge may direct the parties to provide particulars of any mediation, conciliation, or arbitration arrangements which may be available to them. Similar provisions are contained in Order 63B in the case of competition proceedings (see Order 63B, rules 6(1)(i)-(xiii) and 6(2)(d)).
Judicial Separation and Family Law Reform Act 1989 (as amended)
22. Section 14 of the 2017 Act does not apply to proceedings for judicial separation under section 2 of the Judicial Separation and Family Law Reform Act 1989 or applications in such proceedings. However, sections 5(1) and 6(1) of that Act impose corresponding (though not identical) obligations on solicitors acting for an applicant for a decree of judicial separation (section 5(1)) and for a respondent in such an application (section 6(1)). Section 5(2) requires that an application for judicial separation be accompanied by a statutory declaration made by the solicitor (if any) acting for the applicant confirming compliance with section 5(1) and a corresponding obligation is imposed on the solicitor for the respondent by section 6(2) when entering an appearance or a notice of intention to defend. In the event of non-compliance, the court may adjourn the proceedings to allow for compliance.
23. Section 16 of the 2017 Act applies to proceedings under the 1989 Act.
Family Law (Divorce) Act 1996 (as amended)
24. Proceedings for divorce and applications in such proceedings are also excluded from the scope of section 14 of the 2017 Act. However, sections 6 and 7 of the Family Law (Divorce) Act 1996 are similar to the provisions of the Judicial Separation and Family Law Reform Act 1989 referred to above and impose the equivalent obligations on solicitors acting for the applicant (section 6) and for the respondent (section 7).
25. Section 16 of the Mediation 2017 Act applies to proceedings for divorce.
Guardianship of Infants Act 1964 (as amended)
26. Applications under section 6A (appointment of parent as guardian), section 11 (applications by a guardian of a child for directions in relation to the welfare of that child) and section 11B (applications by relatives and other persons for access) of the Guardianship of Infants Act 1964 (as amended) are excluded from the application of section 14 of the 2017 Act. However, solicitors acting for the applicant in any such application are subject to like obligations under section 20 of the Guardianship of Infants Act 1964 and corresponding obligations are imposed on solicitors acting for the respondent by section 21 of that Act.
27. Proceedings under the 1964 Act are within the scope of section 16 of the Mediation 2017 Act.
The importance of complying with the above provisions in family law proceedings
28. It is particularly important that the applicable provisions of the Judicial Separation and Family Law Reform Act 1989, the Divorce Act 1996 and the Guardianship of Infants Act 1964 are fully complied with by solicitors. There is a particularly weighty public interest in facilitating and encouraging the resolution of family law disputes, especially disputes involving minor children, by agreement and without the stress, costs and potential delays of litigation. That is also reflected in the provisions of the (as yet uncommenced) Family Courts Act 2024.
Personal injuries actions
29. Personal injuries actions come within the scope of the Mediation 2017 Act. Separately, section 15 of the Civil Liability and Courts Act 2004 (as amended) permits the court, either at the request of a party to such an action or on its own initiative, to direct the parties to attend a mediation conference. The circumstances in which that power could properly be exercised were considered by the Court of Appeal in Ryan v Walls Construction Limited [2015] IECA 214, [2015] 2 IR 558. The Personal Injuries Resolution Board also have significant powers to facilitate mediation of personal injuries actions under Part IA of the Personal Injuries Assessment Board Act 2003 (as amended)
Review
30. This Practice Direction will be kept under review and will be revised and updated where necessary.
Mr Justice David Barniville
President of the High Court
20 May 2026
SCHEDULE 1 SECTION 3(1) OF THE MEDIATION ACT 2017
“3. (1) This Act shall not apply to
(a) an arbitration within the meaning of the Arbitration Act 2010;
(b) a dispute that falls under the functions of, or is being investigated by, the Workplace Relations Commission, including a dispute being dealt with under Part 4 of the Workplace Relations Act 2015, whether by a mediation officer appointed under section 38 of that Act or otherwise;
(c) a matter that may be determined by—
(i) an Appeal Commissioner appointed under section 8 of the Finance (Tax Appeals) Act 2015,
(ii) the High Court under section 949AR of the Taxes Consolidation Act 1997, or
(iii) a property arbitrator appointed under section 2 of the Property Values (Arbitrations and Appeals) Act 1960 in relation to a decision of the Revenue Commissioners as to the market value of any real property;
(d) an application under section 901, 902A, 907, 907A, 908, 908B or 1077B of the Taxes Consolidation Act 1997;
(e) proceedings under—
(i) sections 960I, 960M, 960N, 1061, 1062 or 1077D of the ,
(ii) section 20 of the Customs Act 2015, or
(iii) section 127 of the Finance Act 2001;
(f) proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review;
(g) proceedings against the State in respect of alleged infringements of the fundamental rights and freedoms of a person;
(h) proceedings under the Domestic Violence Act 2018;
(i) proceedings under the Child Care Acts 1991 to 2015;
(j) subject to subsection (3), any other dispute or proceedings relating to a dispute which may be prescribed for the purposes of this subsection."
