Mediation: It Takes Two…

Author:Mr Liam Guidera and Maurice Phelan
Profession:Mason Hayes & Curran
 
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The High Court recently confirmed a party should not be forced to attend mediation. Refusing an Order requesting the Court to adjourn the proceedings and invite the parties to engage in mediation, the Court stated the defendants were entitled to have their actions vindicated in public. We examine the facts of the case and the likely impact this decision will have in future similar instances.

The Rules of the Superior Courts (the "Rules") allow a judge to adjourn proceedings and invite the disputing parties to attend mediation. This usually occurs where one party to a dispute, having had an offer of mediation refused by their opponent, applies to the Court asking the Court to invite the parties to mediation.

Should one party unreasonably refuse the invitation, the Court can take that refusal into account when awarding costs and may even penalise a successful party that has refused a Court invitation to mediate. 

There have been very few of these applications under the Rules, but the most recent decision in Grant & ors v The Minister for Communications & ors  confirms the High Court's approach to these applications.

Facts

The plaintiffs, who were ship operators, accused the State defendants of wrongfully exercising their authority as public officials, as well as breaching their rights under constitutional and European law. When the action was ready to be set down for trial, the plaintiffs wrote to the defendants inviting them to agree to refer the matter to mediation. Following the defendant's refusal, the plaintiffs made an application asking the Court to invite the parties to mediate the dispute.

Decision

The Court refused the application, reiterating that mediation is a two-way process and that one party should not be compelled to engage in mediation. The Court followed the Court of Appeal decision in Atlantic Shellfish and stated that a court should only exercise its discretion to invite parties to mediation if it considers it "appropriate" to do so  "having regard to all of the...

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