In the late 1990s when mediation was making tentative steps forward, various Court rules were changed and Practice Directions issued. We are all familiar with the overriding objective and the expectation that parties must make every effort to resolve their disputes and that Court should be seen as a last resort after exhausting attempts to settle matters. While Court Rules, Practices Directions and Protocols provide a helpful framework to support mediation – as do decided cases- Northern Ireland does not have any legislation such as the Mediation Act 2017 applicable in the Republic of Ireland.
Section 14 of the Mediation Act provides that a practicing solicitor shall, prior to issuing proceedings, advise the client to consider mediation as a means of attempting to resolve the dispute. In addition, the solicitor must provide the client with information in respect of mediation services including names of persons who provide mediation services. Furthermore, the solicitor must provide the client with information about the advantages of resolving the dispute, the benefits of mediation, and that while being advised about the benefits of mediation, mediation remains voluntary.
If instituting proceedings, the originating document must be accompanied by a Statutory Declaration made by the solicitor that the solicitor has performed and complied with the obligations under Section 14(1).
One might have thought that this would have heralded a significant breakthrough in mediation. However, that has not particularly proved to be the case although awareness of mediation has certainly increased.
For a solicitor to advise about any legal area they do of course need to understand the law and process to competently advise. To advise about mediation and to advise of the advantages of resolving the dispute and the benefits of mediation a solicitor would need to know themselves something about the mediation process. Of course, not all solicitors have undertaken mediation training, nor was it until fairly recently, part of the education and training curriculum for solicitors. Many senior practitioners have evolved their practice in the manner of traditional adversarial litigation.
While the Mediation Act should have encouraged a change of approach from that traditional adversarial litigation, a decision of Mr Justice Twomey issued on 29th July 2025 might have even more impact. This judgement was in the case V Media Doo & Anor -v- Techads Media Limited.[i]
In this case, the High Court took an unequivocal approach to compliance with section 14 including not allowing a case to proceed where the solicitor’s certificate was not delivered with the proceedings.
The judge took care to go through each of the provisions of Section 14 mentioned above and included observations about how a solicitor must provide detailed mediation advice to the client including such details as benefits and advantages of mediation over litigation, confidentiality and enforceability of mediation agreements, and the requirement for the said Mediation Declaration.
The Mediation Declaration must accompany proceedings and should be a compelling affidavit from a solicitor affirming their compliance with the requirements of Section 14.
The Judge found that the obligation to give advice was mandatory and there was an onus on all Courts to ensure that comprehensive advice has been given before the Courts would hear a case.
The Judge highlighted the “considerable onus” on solicitors “to advise clients on the benefits of mediation including the financial benefits”.
Furthermore, the Judge observed that mediation provided a very important reality check on the participants in the dispute which may not have happened until the point where they sit down in mediation and listen to the case of the other side and have their own case stress tested.
Many commentators have observed that this case is at last likely to bring about the change of mindset for litigation lawyers which the legislation hoped to achieve.
If parties are advised properly about the benefits and process of mediation, the financial cost savings, and solicitors are to swear an Declaration that they have so informed the client prior to even lodging proceedings in Court that ought to have a significant impact on solicitors.
Solicitors should put themselves in a position where they can effectively and properly and competently advise about mediation.
Seasoned litigators who have been brought up in the practice of adversarial combat, so to speak, in the courts, will not adjust easily to the requirement to advise about mediation. It will be very worthwhile to observe the developments which unfold in the Republic of Ireland.
What of Northern Ireland? I can recall when representatives of an ADR Committee in the Law Society of Ireland travelled north to learn from our Law Society which had formed the predecessor of the Law Society Mediation Service. However, with legislation now in place in Ireland and as a consequence of the Twomey J judgement it is not hard to conclude that Ireland has stepped far away from where Northern Ireland is at present.
It is true that in many courts the parties are encouraged to seek a resolution. However, we have not yet returned to the days when Mr Justice Coghlin, as he then was, when dealing with the Commercial List, required parties to produce a letter to the Court confirming their advices to the client and providing the client with an estimate of costs. In this Mr Justice Coghlin was ahead of his time regarding thinking about mediation.
The Department of Justice in Northern Ireland is undertaking a review of civil justice – the Enabling Access to Justice Reform Programme - and as part of that the Law Society Mediation Service is engaging with officials to try and secure opportunities to encourage mediation to be used more often.
On 15th May 2019 Mr Justice McCloskey gave a Judgment in the matter of Rose Edmunds Application[ii]
and found that a legally assisted person could avail of legal aid to take part in a mediation. The Legal Services Commission has now given a standing authority for mediation to be covered by a legal aid certificate. However, there has been almost no uptake of this standing authority for parties who are issued with a civil Legal Aid certificate.
Why should that be the case? Solicitors are to act in the best interests of their clients. The benefits of mediation are apparent. Solicitors in Northern Ireland ought not to require legislation or cost sanctions to advise their client properly and competently about the benefits of mediation.
In encouraging greater use of mediation, greater awareness among practitioners is key but also awareness among the judiciary needs to improve. It should be remembered that a mediator is neither a solicitor, nor a barrister, nor a Judge, indeed need not be a lawyer, but must be a competent and trained mediator.
Colleagues should have the confidence to pick the person appropriate for the dispute with the necessary skills and experience and not simply rely on a respected senior legal figure or senior Counsel or retired colleague to provide mediation. There are many competent solicitors running their own businesses, employing people, advising on property issues, business disputes, inheritance disputes, disputed Wills, and clinical negligence cases, all of which are well suited to mediation.
Solicitors should discharge their obligation to advise their clients properly and well by advising their clients of benefits of mediation.
Without waiting for legislation such as the mediation Act 2017, legal representatives here could be asked to provide to the court confirmation of their advice to their client about mediation – back to the future and the process adopted by Mr Justice Coghlin.
This would demonstrate that clients have been advised of alternatives to court-based resolution, of the requirement to have explored resolution, and that Court is a last resort only after efforts have been made to resolve matters.
By more widespread training and adoption of this approach mediation here may catch up with our colleagues in Ireland.
Brian Speers, Solicitor, Mediator
Chair Law Society Dispute Resolution Service
[i] V Media DOO & First Click Marketing Operations Management Ltd. v Techads Media Ltd [2025] IEHC 430.
[ii] Rose Njoki Edmunds Application. [2019] NIQB 50