Study finds ‘systemic non-compliance’ by solicitors on mediation obligations

The study, conducted by certified mediator, solicitor and senior counsel Bill Holohan, examined compliance with section 14 of the Mediation Act 2017. It draws on detailed interviews with 55 practising solicitors carried out in 2023 as part of Mr Holohan’s 2025 PhD thesis, which explores attitudes towards mediation and awareness of statutory duties, The Irish Times reports.

While Mr Holohan cautioned that the findings cannot be taken as representative of all 12,000 practising solicitors in the State, he said the spread of interviewees across geography, age, gender and firm size offered “a broad range of results”.

He concluded that the objectives of the 2017 Act are being “significantly impeded” by a combination of limited knowledge, “cultural resistance” and “systemic non-compliance”.

A central finding was the perception within the profession that mediation may undermine earnings. Almost 78 per cent of those interviewed believed there is a general fear among solicitors that they will earn less if disputes are resolved through mediation, with alternative dispute resolution commonly interpreted as “alarming drop in revenues”.

At the same time, the research suggests strong client support for mediation when properly explained. Solicitors reported that approximately 94 per cent of clients favour mediation when fully advised of the option. An “overwhelming majority” of solicitors – 84 per cent – said they would be willing to agree to mediation unless there was a “good and valid” reason not to do so, with clients typically relying on their solicitor’s guidance.

However, despite the statutory obligation to advise clients on mediation, only 27 per cent of respondents believed they could provide comprehensive advice. A further 49 per cent said they offer some information, while almost 30 per cent described themselves as either opposed or indifferent to mediation.

Mr Holohan described this as a “pervasive selective approach”, shaped by varying levels of understanding and “entrenched attitudes” within the profession. He said enhanced education and training would be required to address these shortcomings.

Presenting his findings at last week’s annual conference of the Irish Professional Mediation Organisation in Dublin, he attributed much of the knowledge gap to deficiencies in legal education and professional training. He also highlighted ongoing concerns among practitioners that earlier resolution of disputes could reduce fee income.

Some more experienced solicitors, however, took a different view, suggesting that lower fees for quicker, less resource-intensive processes could ultimately prove more profitable.

Mr Holohan said the implications of his research are “significant”, warning that failure to properly advise clients about mediation at the outset can lead to unnecessary legal costs and delays in resolving disputes.