Alison Meaney, BCL Law International graduate, University College Cork
Alison is a recent BCL Law International graduate at University College Cork. She is currently completing her FE-1 examinations in advance of beginning her 2027 training contract. She would like to extend her heartfelt thanks to her family for their unwavering support throughout her academic journey, as well as to the members of the UCD Sutherland Symposium for their invaluable contributions and dedication to this piece.
- Introduction
Access to justice is a cornerstone of any democratic legal system, ensuring that individuals can effectively vindicate their rights. In Ireland, the use of Alternative Dispute Resolution (“ADR”), particularly mediation, has emerged as a transformative mechanism within the civil justice system. Mediation offers an alternative to traditional litigation, emphasising efficiency, cost-effectiveness, confidentiality, and party autonomy. Institutionalised through the Mediation Act 2017, it aligns with constitutional, EU and ECHR obligations to provide fair and accessible justice. Despite its advantages, mediation faces critical challenges such as power imbalances, limited public awareness, and accessibility gaps that hinder its effectiveness.
This author contends to critically examine the role of mediation in improving access to justice within the civil justice system. This piece evaluates mediation’s benefits, limitations, and necessary reforms to maximise its impact while comparing Ireland’s approach to that of England. Although mediation significantly enhances access to justice by offering an efficient and collaborative dispute resolution process, targeted reforms are crucial to address its shortcomings and ensure fair and equitable access for all.
II. Constitutional and International Obligations to Establish Access to Justice and ADR
Article 40.3 of Bunreacht na hÉireann guarantees that the State shall ‘vindicate the personal rights of the citizen’ through laws that respect justice. The Law Reform Commission also contends that an integrated civil justice process should include a combination of ADR processes and the court-based litigation process.[1] Mediation aligns with this recommendation by offering a participatory process that avoids the formalism and delays of the courts. Notably, Article 6 of the European Convention on Human Rights (“ECHR”) and Article 47 of the EU Charter of Fundamental Rights impose binding obligations on Ireland to guarantee effective access to justice through both judicial and alternative dispute resolution mechanisms. Article 6(1) ECHR establishes the right to ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal,’[2] while Article 47 of the EU Charter explicitly guarantees ‘the right to an effective remedy before a tribunal’.[3] ADR supports these obligations while assisting in fulfilling Article 40.3’s constitutional guarantee.
The Mediation Act 2017 represents a transformative step in Ireland’s civil justice system by institutionalising mediation as a core dispute resolution mechanism. It aimed to establish mediation as a formal alternative to litigation, transforming Ireland’s civil justice system by encouraging quicker, more cost effective, and less adversarial dispute resolution. A key innovation is the introduction of pre-action mediation protocols, obliging solicitors to advise clients on mediation before litigation. Non-compliance, under Section 14, may result in cost penalties on clients,[4] reinforcing the Act’s emphasis on mediation as a first resort.[5] This improves access to justice by ensuring people are informed about alternative dispute resolution processes that may be faster and better suited to their case than traditional litigation. The Act also introduced a statutory Code of Practice for mediators to standardise training, ethics, and impartiality, addressing concerns about mediator competency. While full implementation is pending, this framework aims to ensure procedural fairness and professional standards in alternative dispute resolution processes.[6]
- Advantages of Mediation in Enhancing Access to Justice
a. Efficiency and Cost-Effectiveness
Mediation has proven to be faster and more economical than litigation, with the Irish Commercial Mediation Association reporting success rates of almost 65% in commercial disputes, rising to 85% in more established jurisdictions like the UK and US.[7] In Ireland, businesses can save up to 70% in costs compared to court proceedings.[8] The speed of resolution is another major advantage as mediation often concludes within weeks or months, drastically reducing legal expenses and administrative burdens.[9]
For low-income individuals, State-subsidised mediation services, such as the Legal Aid Board’s Family Mediation Service, provide free or low-cost dispute resolution, avoiding the lengthy delays of traditional legal aid. They have been operational since 2011 and assisted 1,503 couples in 2022, demonstrating ADR’s role in diverting disputes from overburdened courts.[10] These figures highlight how mediation not only reduces costs but also alleviates pressure on Ireland’s overburdened court system, making justice more accessible.
- Party Autonomy and Tailored Outcomes
Another advantage is that unlike court-imposed rulings, mediation fosters collaborative problem-solving, allowing parties to shape outcomes that address both legal and emotional needs. Workplace disputes, for example, frequently result in non-monetary resolutions, with solutions sought including revised policies, apologies, or procedural changes, terms that courts lack the flexibility to impose.[11] The Workplace Relations Commission provides pre-adjudication mediation services prior to full hearings.[12] This system allows for quick tailor made solutions to issues to be provided and access to justice fulfilled in a time-efficient manner. Furthermore, this interest-based approach is particularly valuable in family disputes, where mediated settlements can include custom parenting plans rather than rigid custody rulings.[13] While on the surface this clearly allows for easier access to justice, it also underpins fairer access to justice process for children who may be intimidated by a custody ruling in a court based setting. The Legal Aid Board describes mediation of particular benefit in cases involving children, as it aims to resolve issues in an effective, non-adversarial way.[14]
- Confidentiality and Relationship Preservation
Confidentiality is a cornerstone of mediation, protected under Section 10 of the Mediation Act 2017, which widely ensures that discussions and documents remain inadmissible in court, with few exceptions.[15] Confidentiality in mediation plays a crucial role in enhancing access to justice by fostering trust and openness within the process.[16] This protection encourages candid communication, which is essential for reaching mutually acceptable settlements. By safeguarding confidentiality, mediation creates a safe environment where parties can engage constructively, reducing barriers to resolution and promoting fairness.[17]
This privacy is especially vital in sensitive disputes, such as family conflicts, where public litigation could inflict reputational harm or emotional distress. Such safeguards ensure that mediation remains a voluntary, trust-based process, distinct from the exposure and unpredictability of court battles. Confidentiality is therefore certainly ‘mediation’s most compelling and straightforward ethical imperative’ and essential in ensuring fair access to justice.[18]
IV. Critical Challenges and Limitations
- Mandatory Mediation and Procedural Rights
The imposition of mandatory mediation raises significant constitutional concerns under both Article 40.3 of the Irish Constitution,[19] and Article 6(1) of the ECHR,[20] which guarantee the right to a fair trial. The Law Reform Commission cautions that mandatory mediation could undermine procedural fairness if parties feel compelled to accept unfavourable settlements to avoid cost penalties for refusal under Section 21 of the Mediation Act 2017.[21] This tension mirrors the UK’s Halsey v. Milton Keynes precedent,[22] where courts condemned blanket compulsion but permitted cost sanctions for unreasonable refusal to mediate. As a result, cost penalties are effective in ensuring mediation is at the forefront of potential legal solutions but only where their refusal to mediate was considered to be unreasonable.
The Halsey case also outlined six key guidelines for what may constitute refusal to mediate, those being dispute suitability, case merits, prior settlement attempts, mediation costs, trial delay risk, and mediation’s likely success. However, the Irish jurisdiction still lacks clear guidance on what constitutes “unreasonable” refusal, leaving litigants vulnerable to arbitrary judicial discretion. Recent Irish jurisprudence such as the Byrne v. Arnold case,[23] demonstrates how plaintiffs may incur cost penalties if their solicitors fail to fulfil their Section 14 obligations and advise their client that mediation is a potential method of dispute resolution available. Critically, this seems to be mandatory mediation hiding in plain sight, as here the failure to utilise mediation left the plaintiff financially impacted as a result of the solicitor’s failure to advise. This underwrites how the courts are prioritising the use of ADR solutions and, if not utilised, financial repercussions will be incurred, even by the party not at fault. This author contends that decisions like this are a de facto mandatory mediation, as the courts are throwing their weight behind the use of ADR. The 2023 case of Churchill v Merthyr Tydfil CBC[24] confirmed that English courts may lawfully stay proceedings and order parties to engage in ADR processes, including mediation, provided this does not impair the essence of their right to a fair trial under Article 6 ECHR and is proportionate to the legitimate aim of promoting efficient,[25] cost‑effective settlement. The court held that earlier comments in Halsey suggesting that obliging unwilling parties to mediate would breach Article 6 were obiter and not binding,[26] thereby removing a perceived bar on ordering “mandatory” mediation. They also refused to set out clear guidelines on when mandatory mediation might be appropriate and ordered by the courts. While the judgment does not make mediation compulsory in every case, it significantly strengthens judicial powers to direct parties toward mediation and signals an expectation that such processes will be used more routinely where appropriate.
In the 2025 Irish High Court decision of V Media DOO,[27] the mandatory nature of mediation declarations was reinforced under the Mediation Act 2017. The decision confirms that if a court is not satisfied that a valid mediation declaration was delivered at the time proceedings were issued, it must refuse to hear the case. In such circumstances, the court is required to adjourn the proceedings until compliance with Section 14 of the Mediation Act 2017 is established. This reinforces the fact that the courts are holding mediation to be mandatory in Ireland and that litigation should be used as a last resort. On a prima facie level, mandatory mediation is ill-suited for Ireland’s voluntary autonomy driven framework under the Mediation Act 2017. It risks eroding procedural rights and coercing settlements that may not reflect case merits. Furthermore, this strong judicial and statutory push towards ADR amounts to covert compulsion, with unresolved unknowns remaining when such orders are compatible with constitutional and ECHR protections. The repercussions of the V Media case and mandatory obligations under the 2017 Act remain to be fully seen in the light of ECHR and constitutional protections.
- Power Imbalances
Mediation’s effectiveness hinges on the assumption of equal bargaining power, yet structural inequalities often render this ideal unattainable.[28] In disputes involving power differentials, such as employers and employees, this can skew outcomes, with disadvantaged parties potentially conceding to unjust terms under implicit coercion. Furthermore, if mediation does not result in settlement, it ends up being an extra step on the road to justice.[29] This, coupled with the risk that mediation is not taken in good faith, can result in one party later being prejudiced in court proceedings because the other party has become privy to information that would otherwise have been privileged.[30] Despite confidentiality promises, the competing parties cannot unhear what was discussed at mediation meetings and may use this against the other party. This strikes a major power imbalance which could potentially have detrimental effects on a person’s access to justice. Mandatory training for mediators on recognising and mitigating power imbalances, coupled with the option for disadvantaged parties to have representation during mediation, can help ensure fairness and protect access to justice.[31]
- Awareness and Accessibility Gaps
Despite legislative efforts to promote mediation, systemic barriers persist. A 2024 Performance Delivery Agreement between the Legal Aid Board and the Department of Justice promised that creating awareness and providing information to the public on mediation options would be a top priority.[32] Mediation is simply not widely known enough for the benefits it can provide for people in access to justice. As a result, the burden it could potentially lift from the court system is not yet felt. Moreover, the prohibitive costs of private mediation, on average being €150 to €300 per hour,[33] exclude low-income individuals, contradicting the Mediation Act’s objective to enhance access to justice.
While State-subsidised services like the Family Mediation Service offer affordable alternatives, their capacity is insufficient to meet demand, with some waiting times for legal aid exceeding 69 weeks as of February 2026.[34] Ireland’s ADR framework and specifically mediation framework must prioritise public education campaigns, expand subsidised services, and clarify cost sanctions to prevent punitive outcomes for vulnerable litigants. Otherwise, mediation offers little to no benefit to the public and further infringes on low-income families and their access to justice. This author thus strongly submits that even a highly effective mediation system holds little value if people are prevented from accessing it due to financial barriers or a lack of understanding of how mediation may be suitable or more effective to their issue.
V. Comparative Common Law Perspective: The United Kingdom
Ireland’s voluntary mediation model under the Mediation Act 2017 prioritises party autonomy through incentives rather than compulsion, requiring solicitors to advise clients on mediation while leaving participation optional.[35] This contrasts with England’s prescriptive Civil Procedure Rules, where courts mandate ADR consideration and may impose sanctions for refusal to mediate. Cases like Lomax v. Lomax,[36] enforcing mandatory mediation in family disputes, highlight England’s focus on judicial case management and systemic efficiency over individual preference. A critical tension emerges between preserving access to justice and ensuring efficient dispute resolution.
Ireland’s approach also risks underutilisation due to limited public awareness of mediation’s benefits. England, meanwhile, has shelved mandatory mediation in favour of incentive schemes like the £500 Mediation Voucher Scheme, assisting families in disputes. However, enforcing mandatory mediation based on Lomax precedent could compromise procedural rights.[37] The Mediators’ Institute of Ireland reports an 80% success rate for mediated cases, underscoring strong outcomes when utilised.[38] The evolving jurisprudence in Lomax and subsequent cases suggests England may push the boundaries of acceptable compulsion, if mandatory mediation is reinstated. Ireland’s challenge remains increasing voluntary uptake and awareness of mediation as a method of quicker and more favourable justice.
VI. Recommendations for Reform
- Subsidies and Resource Limitations
A critical weakness lies in the uneven distribution of subsidised mediation services. While the Legal Aid Board’s Family Mediation Service provides free or low-cost sessions, means testing thresholds exclude many low-income individuals. As of February 2026, urban areas are experiencing wait times of up to 69 weeks,[39] which reflect a system operating beyond capacity. The Legal Aid Board’s 2024-2026 Strategy acknowledges these challenges, emphasising the need for community-based legal clinics to bridge gaps.[40] Adopting an approach similar to the £500 Mediation Voucher Scheme in the U.K. would be a more immediate solution to alleviating the burden on Legal Aid Services,[41] while still trying to reduce the strain on court services in the long run. This once-off payment scheme has been running in the U.K. since 2021 and has been extended through to March 2026,[42] highlighting its success in alleviating pressure on already overburdened systems. This reform could be enacted through amendment to the 2017 Act, but most certainly should be a priority for Irish lawmakers when considering ADR reform.
- Bridging the Information Gap
Persistent low awareness of mediation undermines its potential as a mainstream dispute-resolution pathway. The Legal Aid Board’s 2024–2026 Strategy prioritises digital outreach and community partnerships to counter this trend.[43] They aim to promote mediation and its effectiveness in specific circumstances.[44] They acknowledge that there is insufficient public understanding of the nature and effectiveness of mediation as a means to resolve disputes.[45] Citizens Information and the Mediators’ Institute of Ireland could target regions with low legal aid and mediation engagement, such as North Dublin, Mayo and Kilkenny,[46] where waiting times are low, likely due to lack of public knowledge on the efficacy of mediation services. They could run public awareness campaigns and digital advertisements in those areas to increase engagement with mediation services in Ireland. This would likely increase people’s ability to access justice more easily, as they are not relying on long wait times before justice is served.
- Rebalancing the Power Imbalance
This is a complex issue to resolve, but resolving it requires proactive measures by mediators to ensure fairness and equity.[47] Mandatory training for mediators is crucial to equip them with skills to recognise and mitigate power disparities effectively. Narine suggests techniques such as caucusing,[48] where mediators meet privately with parties to address concerns and ensure understanding, and referring disadvantaged parties to relevant resources, including legal or expert representation, to empower them during the process. These strategies help balance dynamics and protect access to justice.
- Defining “Unreasonable Refusal”
To address the lack of clarity surrounding “unreasonable refusal” to mediate in Ireland, this author suggests codifying specific guidelines akin to those established in Halsey v Milton Keynes NHS Trust.[49] These guidelines should consider factors such as the dispute suitability, case merits, prior settlement attempts, mediation costs, trial delay risk, and mediation’s likely success. Additionally, courts should require parties to document their reasons for refusing mediation, ensuring transparency and accountability. This framework would reduce judicial discretion, safeguard procedural fairness, and promote the consistent application of cost sanctions under Section 21 of the Mediation Act 2017.[50]
VII. Conclusion
In summary, mediation as a form of ADR has significantly enhanced access to justice within the civil justice system. Its efficiency, cost-effectiveness, confidentiality, and ability to deliver tailored outcomes make it a valuable alternative to traditional litigation. The Mediation Act 2017 has institutionalised its use in Ireland, laying the path for effective access to justice. However, challenges such as power imbalances, limited public awareness, and accessibility gaps persist. To fully realise mediation’s potential, reforms are needed to expand subsidised services, address procedural fairness concerns, and enhance public education about its benefits. While not without limitations, mediation remains a powerful tool for improving access to justice and alleviating pressure on overburdened courts. With targeted reforms, it can continue to evolve as an essential component of a fair and effective civil justice system.
[1] Law Reform Commission, Consultation Paper on Alternative Dispute Resolution (LRC CP 50-2008).
[2] European Convention on Human Rights, Article 6(1).
[3] EU Charter of Fundamental Rights, Article 47.
[4] Byrne v Arnold [2024] IEHC 308.
[5] Mediation Act 2017, s 14.
[6] ibid s 9.
[7] ICMA, ‘Mediation can save businesses up to 70% compared to the cost of going to court’ (Irish Commercial Mediation Association, 30 March 2025) <https://icma.ie/mediation-can-save-businesses-up-to-70-compared-to-the-cost-of-going-to-court/> accessed 2 April 2025.
[8] ibid.
[9] Harry Fehily., ‘Mediation explained’ (Holmes Law, 14 May 2019) <https://holmeslaw.ie/insights-news/news/mediation-explained> accessed 31 March 2026.
[10] Legal Aid Board, ‘Annual Report 2022’ (Legal Aid Board, 31 December 2022) <https://www.legalaidboard.ie/about-the-legal-aid-board/organisational-governance-compliance/annual-reports-financial-statements/annual-report-2022/> accessed 31 March 2026.
[11] Workplace Relations Commission, Guide to the Workplace Relations Commission (October 2017) <https://www.workplacerelations.ie/en/publications_forms/wrc-quick-guide-booklet-eng-.pdf> accessed 31 March 2026.
[12] Workplace Relations Commission, WRC Mediators principles and code of ethics (September 2022) <https://www.workplacerelations.ie/en/complaints_disputes/mediation/wrc-mediation-code-of-practice-and-ethics.pdf> accessed 30 March 2026.
[13] Rachael McDaid, ‘What Happens at Family Mediation in Ireland?’ (Mediation Dublin, 2025) <https://mediationdublin.ie/what-happens-at-family-mediation-in-ireland/> accessed 29 March 2026.
[14] Legal Aid Board, ‘Legal Aid Board Statement of Strategy’ (Legal Aid Board, 2022) <https://www.legalaidboard.ie/about-the-legal-aid-board/organisational-governance-compliance/statement-of-strategy/> accessed 30 March 2026.
[15] Mediation Act 2017, s 10.
[16] Penelope McRedmond, Mediation Law (Bloomsbury 2018), Chapter 1.
[17] ibid.
[18] Ellen Waldman, Mediation Ethics, Cases and Commentaries (San Francisco; Jossey-Bass 2011), 227.
[19] Article 40.3.3°.
[20] European Convention on Human Rights (n 2).
[21] Mediation Act 2017, s 21.
[22] Halsey v Milton Keynes NHS [2004] EWCA Civ 576.
[23] Byrne (n 4).
[24] Churchill v Merthyr Tydfil Borough Council [2023] EWCA Civ 1416.
[25] European Convention on Human Rights (n 2).
[26] Halsey (n 22).
[27] V Media DOO & First Click Marketing Operations Management Ltd v Techads Media Ltd [2025] IEHC 430.
[28] Imelda Gaffney, ‘Impartiality and Neutrality in Mediation’ (2022) 8(1) Journal of Mediation and Applied Conflict Analysis 59.
[29] Stella Vettori, ‘Mandatory mediation: An obstacle to access to justice?’ (2015) 15 African Human Rights Law Journal 355-377.
[30] ibid.
[31] Amrita Narine, ‘Power Imbalances in Mediation’ (2017) Harvard Negotiation Law Review<https://journals.law.harvard.edu/hnlr/2017/02/power-imbalances-in-mediation-a-student-note-by-amrita-narine/> accessed 30 March 2026.
[32] Legal Aid Board and Department of Justice, 2024 Performance Delivery Agreement (2024) <https://assets.gov.ie/304391/f0a4891a-0ad5-4689-9f8a-7fc5f641e1bc.pdf> accessed 28 March 2026.
[33] Rachael McDaid, ‘How much does mediation cost in Ireland?’ (Mediation Dublin, 2025) <https://mediationdublin.ie/how-much-does-mediation-cost-in-ireland/#:~:text=The%20Cost%20of%20Mediation%20in%20Ireland&text=Generally%2C%20Mediators%20charge%20an%20hourly,to%20€300%20per%20hour> accessed 30 March 2026.
[34] Legal Aid Board, ‘Management Information’ (Legal Aid Board, 28 February 2026)<https://www.legalaidboard.ie/media/0nvfoopa/february.pdf > accessed 25 March 2026.
[35] Mediation Act 2017, s 14.
[36] Lomax v Lomax [2019] EWCA Civ 1467.
[37] Ministry of Justice, ‘Family Mediation Voucher Scheme’ (gov.uk, 26 March 2021) <https://www.gov.uk/guidance/family-mediation-voucher-scheme> accessed 29 March 2026.
[38] Mediators’ Institute of Ireland, ‘Mediation can help resolve your dispute’ (2025) <https://www.themii.ie/wp-content/uploads/2023/10/Mediation-Works-Leaflet.pdf> accessed 30 March 2026.
[39] Legal Aid Board (n 34).
[40] Legal Aid Board, ‘Statement of Strategy 2024-2026’ (Legal Aid Board, 2024) <https://www.legalaidboard.ie/media/awrc0mrk/statement-of-strategy-2024-2026.pdf> accessed 31 March 2026.
[41] Jess Knauf, ‘Mediate UK welcomes extension of £500 voucher scheme’ (Mediate UK, 7 June 2022) <https://www.mediateuk.co.uk/mediate-uk-welcomes-extension-of-500-voucher-scheme/> accessed 30 March 2026.
[42] ibid.
[43] Legal Aid Board Statement of Strategy (n 40).
[44] ibid.
[45] ibid.
[46] Legal Aid Board (n 34).
[47] Narine (n 31).
[48] ibid.
[49] Halsey (n 22).
[50] Mediation Act 2017, s. 21.
UCD Law Review 