Voluntarism in Court-Connected Mediation in Ireland-Is it Time for a Rethink?

Mediation is often identified as a voluntary process. In many ways, indeed, it is voluntarism that sets mediation apart. By choosing to enter mediation and come to an agreement, parties are allowed to settle their dispute on their own terms rather than having a resolution imposed upon them. When mediation occurs as part of a court process, however, voluntarism can be affected. In Ireland, mediation is increasingly identified as an effective resolution process for many civil disputes. First introduced in the Commercial Court rules in 2006, mediation is now an option in many civil disputes. This paper examines how mediation is used in the Superior Courts in Ireland and how voluntarism is understood by judges and other stakeholders. A number of recent cases, where rules governing the use of mediation have been raised, will be discussed. In addition, a number of interviews with stakeholders will be analysed. Finally, the Irish situation will be compared with the approach adopted in England and Wales. In that jurisdiction, the Civil Procedure Rules (CPR) placed mediation and alternative dispute resolution firmly within the litigation process. An analysis of the cases and the interview data shows that a belief in voluntarism may be limiting the use of mediation in the Superior Courts in Ireland. It is argued that the time is ripe for a CPR-type reform process in Ireland to place mediation more firmly within the litigation process and to make mediation a more effective part of the civil litigation system.