When will the courts direct litigants to resolve their dispute via mediation?

The Court of Appeal refused to adjourn litigation to accommodate mediation because it was not a suitable means of dispute resolution.

Alternative Dispute Resolution and the Courts

In 2010, new court rules were introduced to encourage litigating parties to avail of Alternative Dispute Resolution Options (ADR).

The Courts were given the power to adjourn legal proceedings and invite the disputing parties to consider ADR which usually involves the referral of the dispute to mediation to assist the parties in reaching an amicable solution. This does not mean that parties can be forced to use ADR, only that the Court can delay proceedings to allow ADR to be considered as an option. If, however, one of the parties refuses to consider ADR without any good reason, this is something the Court can take into consideration when deciding who should pay legal costs at the end of the case. 

Recent Court of Appeal decision

In a recent Court of Appeal decision, the plaintiff fish farm commenced proceedings against the State and Cork County Council for damage caused to its farm by untreated sewage which was being pumped into the adjacent harbour.

• The Plaintiff farm made an application to Court, under the 2010 rules, to adjourn proceedings and invite the State to consider mediation
  The Plaintiff claimed that, due to the complexity and potential high cost of the case, mediation would be a much faster and cheaper alternative to Court
• The State however disagreed and argued that mediation would not be appropriate in this case. 
• The High Court refused to adjourn proceedings on the basis that the Plaintiff already knew that the State was not a willing participant
• The Court of Appeal agreed with the High Court in refusing to allow an adjournment. It held that this case was not one which was suitable for mediation
• The case involved complex legal issues that required judicial determination. The Court also held that the State defendants should not have to engage in lengthy, complex and costly mediation particularly when it provided little chance of a successful resolution. 

What can companies / individuals learn from this case?

The 2010 rules are useful for any company or individual involved in expensive and costly litigation. If there is a situation where ADR is a viable option, an application can be made to Court to encourage it to happen. If there is a refusal to participate and the party refusing has no good reason, they may have to face costs implications at the end of the case.

Atlantic Shellfish Limited and David Hugh-Jones v The County Council of the County of Cork, The Minister for the Marine and Natural Resources, Ireland and the Attorney General. Court of Appeal 7 December 2015.