November 17 2015 Court of Appeal imposes qualifications on 'mandatory' mediation Matheson | Litigation - Ireland Litigation IntroductionBackgroundApplication and lawDecisionCommentIntroductionIn a recent decision(1) the Court of Appeal considered Section 15 of the Civil Liability and Courts Act 2004, which confers jurisdiction on the High Court in personal injury claims to compel mediation, irrespective of whether the parties consent. This is in contrast to Order 63A, Rule 6(1)(xiii) and Order 56(A), Rule 2 of the Rules of the Superior Courts, which clarify that the courts may not otherwise direct the submission of a dispute to an alternative dispute resolution (ADR) process.Background The plaintiff had been involved in two accidents during the course of his employment and had brought separate High Court claims which were ultimately consolidated. The cases were characterised by significant delay, having commenced in 2008, with defences delivered in 2009 and discovery issues addressed in 2013. In one case, liability was admitted (although the quantum of damages was at issue); in the other, the pleaded case was inconsistent regarding the question of liability. The judge had been informed incorrectly that the second claim did not involve a contest on liability and, having considered submissions from both sides, took the view that the case was appropriate for mediation.Application and lawThe defendant appealed and set out various grounds as to why it was not appropriate to compel the parties to mediate. It contended, among other things, that it did not intend to make an offer to settle and that mediation would only add another layer of costs. The plaintiff was keen for mediation to proceed and highlighted, among other things, the compulsory nature of mediation under Section 15 of the act. Reference was also made to an unreported decision(2) on Section 15, in which the court felt that it was appropriate to direct mediation where it would merely assist in reaching a settlement. The plaintiff also cited the possibility that, even if unsuccessful, mediation might narrow the issues to be determined at trial, and that in appealing the defendant was only delaying matters and adding to costs.Judge Kelly for the Court of Appeal began by reciting the history of ADR in Ireland and the benefits which mediation – as its most prominent form – can yield. Having summarised the facts and arguments, he quoted Section 15 of the act:"(1) Upon the request of any party to a personal injuries action, the court may:(a) at any time before the trial of such action, and(b) if it considers that the holding of the meeting pursuant to a direction under this subsection would assist in reaching a settlement in the action, direct that the parties to the action meet to discuss and attempt to settle the action, and a meeting held pursuant to a direction under this subsection is in this Act referred to as a 'mediation conference'(2) Where the court gives a direction under subsection (1), each party to the personal injuries action concerned shall comply with the direction."Thereafter, Kelly observed that the wording clarifies that parties to a personal injury action may be compelled to attend a mediation conference whether they wish to or not. Moreover, he acknowledged that in considering whether to direct a mediation conference, a court must consider that holding a mediation conference would assist in reaching a settlement. He further observed that "It does not assist in reaching a settlement if an order is made under the section with little prospect of a successful outcome and a likelihood that all that will be achieved will be the incurring of further costs and delay."DecisionKelly commenced by highlighting the position under the Rules of the Superior Courts, pursuant to which the parties could merely be invited to consider mediation, which he felt recognised the voluntary nature of the process. However, by enacting the act, the legislature went further and permitted courts in personal injury cases to mandate mediation.Notwithstanding legislative intent, Kelly warned that "care must be taken so as to ensure that by making an order under S.15 the court is doing no more than adding a further layer of delay and costs to the proceedings". To avoid such a result, he made some general observations pertinent to jurisdiction under Section 15:The normal route to settle personal injury cases is through face-to-face negotiation, which Kelly noted had not happened in this case. Consequently, he felt that the "court should be slow to invoke a compulsory mediation procedure where the parties have not themselves endeavoured to bring about a settlement of the litigation in the normal way".He also felt that little would be achieved by way of reaching settlement or saving costs if mediation were sought at too late a stage in proceedings. In this case, the expensive discovery process had already been completed, notice of trial had been served and the matter was ready to be given a hearing date.Kelly said that the court should also consider whether making the order would involve "any realistic prospect of assisting in reaching a resolution". In doing so, the "court should be astute to ensure that by making the order sought it is not simply adding costs and delay".In general, he felt that a court:"should not countenance the making of an order under s.15 in circumstances such as the present case where no realistic attempt at settlement had been attempted, where the discovery process has been completed in its entirety and where the case was on the threshold of a hearing."Accordingly, he felt that the order made was in error and could not be allowed to stand.Comment The decision further qualifies the wording used in Section 15, where the court considers whether to direct parties to mediate personal injury disputes. Relevant additional factors will be the extent of prior attempts at settlement and the status of the case as a whole, as well as a final additional factor regarding the prospects of a resolution. It appears to be the case that before mandating mediation for such cases, the court must consider more issues to give parties which are otherwise unwilling to mediate arguments to deploy in order to resist a direction to that effect. Mediation under Section 15 is therefore less likely to be mandated.For further information please contact Gearoid Carey at Matheson by telephone (+353 1 232 2000) or email ([email protected]). The Matheson website can be accessed at www.matheson.com.Endnotes(1) Ryan v Walls Construction Limited,  IECA 214.(2) McManus v Duffy, unreported High Court, December 4 2006, Feeney J.