The recent High Court Practice Direction issued by the President of the High Court, Mr Justice David Barniville, represents a significant development in how mediation and alternative dispute resolution are now being positioned within Irish legal practice.
On the surface, the Practice Direction focuses on procedural obligations under the Mediation Act 2017. It reminds solicitors and litigants of their obligations to properly consider mediation before initiating proceedings and highlights the potential consequences of failing to do so.
But underneath the procedural language sits something much more important. An emerging judicial recognition that unmanaged litigation itself can become part of the problem. This is particularly relevant within family law and high conflict separation cases.
Conflict Does Not Simply Escalate on Its Own
Many couples and families do not arrive in court because they are incapable of resolution. They arrive because conflict has gradually become organised around:
- fear
- identity protection
- positional advocacy
- unresolved attachment injuries
- shame
- emotional reactivity
- and procedural escalation.
The legal system often enters the picture at precisely the point where emotional regulation and reflective functioning have already significantly deteriorated. Once this occurs, the dispute frequently stops being about the original issue. The conflict becomes about:
- being believed
- avoiding blame
- preserving dignity
- protecting a parental role
- controlling uncertainty
- or preventing emotional annihilation.
In these situations, adversarial structures can unintentionally intensify the very dynamics they are attempting to resolve.
The Identified Patient in Family Conflict
In family systems work, we often speak about the “identified patient”. This is the person who carries the visible symptom of the wider relational system. In high conflict separation, the identified patient is frequently the child. The child begins to show:
- anxiety
- emotional dysregulation
- school refusal
- splitting behaviours
- loyalty conflicts
- relational withdrawal
- psychosomatic symptoms
- or rigid rejection dynamics.
The mistake many systems make is treating the child as the source of the problem rather than as the carrier of systemic distress. The child’s symptoms are often downstream consequences of:
- unresolved adult conflict
- chronic litigation
- adversarial positioning
- emotional triangulation
- inconsistent containment
- and prolonged uncertainty.
In some cases, the legal process itself inadvertently maintains the symptom. Repeated affidavits, adversarial correspondence, delayed proceedings, contradictory interim arrangements, escalating allegations, strategic positioning, and public narrative warfare can create an environment where emotional stabilisation becomes almost impossible. Children then adapt to instability psychologically. Their behaviours begin to make sense within the system they are living inside.
What the High Court Practice Direction Signals
The Practice Direction strongly reinforces the mandatory obligations under Section 14 of the Mediation Act 2017. Solicitors must:
- advise clients to consider mediation
- explain the benefits of mediation
- provide mediation information
- and complete the required statutory declarations.
The High Court also emphasises that this is not a “box ticking exercise”. That language matters. The court is effectively communicating that mediation should not be treated as a procedural inconvenience before “real litigation” begins.
Instead, meaningful consideration of dispute resolution is now being framed as part of responsible legal practice itself. Importantly, the Practice Direction also highlights potential cost consequences for parties who unreasonably refuse mediation or fail to engage meaningfully.
Again, this reflects a wider shift. Not every dispute benefits from adversarial escalation. Not every conflict requires judicial determination. And not every emotional injury can be repaired through legal victory.
Mediation Is Not About Avoiding Conflict
One of the persistent misunderstandings about mediation is that it exists to reduce tension or encourage people to simply “get along”. Good mediation is not passive conflict avoidance. Good mediation is structured conflict management. At its best, mediation provides:
- procedural containment
- slowed communication
- emotional regulation support
- reflective space
- structured negotiation
- future focused planning
- and opportunities for partial repair.
Importantly, mediation also allows people to remain psychologically and relationally functional while navigating disagreement. That distinction matters enormously in family cases involving children. Children do not require perfect parents. But they do require adults capable of managing conflict without psychologically collapsing the family system around them.
Mediation Is Not Appropriate In Every Case
It is important not to romanticise mediation. The Practice Direction correctly acknowledges that mediation may not be appropriate where safety concerns exist. Cases involving:
- coercive control
- domestic abuse
- intimidation
- severe personality disturbance
- active addiction
- or serious power imbalances
may require litigation, safeguarding structures, or highly specialised intervention. Mediation should never become a mechanism for silencing legitimate safety concerns. But equally, the absence of mediation consideration in appropriate cases often allows adversarial processes to continue unchecked long after they have stopped serving the family.
My Work at Changes.ie
As a systemic psychotherapist and mediator at Changes.ie, I increasingly see mediation as more than a dispute resolution mechanism. I see it as a relational stabilisation process. Particularly within separation and high conflict family dynamics, the goal is not simply agreement. The goal is reducing relational damage while helping individuals make better decisions under emotional pressure.
This often involves:
slowing escalation
• increasing reflective capacity
• reducing reactivity
• supporting co parent functioning
• improving communication boundaries
• clarifying procedural fairness
• and helping families move from survival mode into structured decision making.
Many people entering mediation are not irrational. They are overwhelmed.
- They are frightened
- Emotionally flooded.
- Defensive.
- Exhausted.
- And often operating inside systems that reward escalation rather than reflection.
Good mediation creates enough containment for thinking to return. That is often where meaningful resolution begins.
Final Reflection
The most important line within the new Practice Direction may not be the procedural requirements themselves. It is the underlying recognition that unresolved conflict carries consequences beyond legal outcomes. The financial costs of litigation are obvious. The psychological costs are often less visible:
- chronic stress
- family fragmentation
- parent child relationship damage
- emotional exhaustion
- identity hardening
- and long term intergenerational consequences.
The legal system can determine rights. But it cannot always restore relationships, emotional safety, or trust. That work requires something different.
- Sometimes slower.
- Sometimes harder.
- But often far more human.