Traditionally, mediation has been an option for the parties to a court action to engage in if both Parties wished to do so.
The option of mediation has a number of advantages including reduced legal costs, the use of a trained mediator to try to resolve what otherwise appeared to be intractable disputes in an informal setting and the benefits of flexibility and more speedy resolutions.
The process is also entirely confidential and, of particular use in employment disputes where one party continues to work for the other, wider issues other than those in the court proceedings can be discussed so as to assist the employer/employee relationship.
On occasion however, in cases where mediation would appear to be the most logical next step, the party with the deeper pockets, whether an insurance company or perhaps a financially secure employer, may decline to enter into mediation so as to keep financial pressure on the other party, who may have a good case but may not be able to afford to keep taking the financial risks involved in all litigation.
Up to now, the courts could encourage mediation and take a dim view of any party not so engaging but could not compel the parties to enter into mediation.
This may be about to change as in a very recent High Court decision, Mr Justice Michael Twomey, taking account of increasing legal costs, the public interest in freeing up the courts to hear cases earlier and the ‘best interests’ of litigants, directed the otherwise entrenched parties to engage in this way.
In the case being heard – Burke v O’Connell – Twomey J. held that the court did have the power to order mandatory mediation, and that such a direction did not breach the constitutional right of access to the courts, provided the terms of the order were proportionate and did not cause undue delay.
It now remains to be seen firstly whether the Decision is appealed and secondly whether fellow Judges follow and agree with Mr Justice Twomey in other cases.
Speedier resolution of cases may now be more obtainable than heretofore.
If you would like legal advice on Mediation or any other legal matter, please contact us here info@mcgrathmullan.ie or call us here +353 (0) 1 873 5012