Compulsory mediation and right of access to the judicial system

One of the most important topics in the mediation context in the EU is the relationship between mediation as an extra-judicial instrument for resolving a dispute and judicial proceedings. In other words, if the parties to a dispute should seek recourse to mediation voluntarily or if it is compulsory; for example, making mediation a condition for the admissibility of action before the court, or as a condition for proceeding in the court.

The Directive does not specify a precise means of addressing the relationship between mediation and judicial proceedings but attempts to regulate this relationship by setting a limitation period for the mediation procedure in order to avoid precluding judicial action.

172 _{Cortés, Online Dispute Resolution for Consumers in the European Union (Routledge 2010)}

173 _{A Anthimos, ‘Greece’ in Giuseppe De Palo and Mary B Trevor (eds), EU Mediation Law and Practice (Oxford} University Press 20 12)

174 _{Rebecca Attree, ‘The Impact of the EU Mediation Directive: A United Kingdom Perspective’ (Libralex} Meeting, Perugia, Italy, 22 October 2011) <http://www.libralex.com/Documents/Internal/38-

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Indeed, in general, the Directive has chosen voluntary mediation but leaves the option for any Member State to make mediation compulsory before judicial proceedings, as provided in Article 5/2:

This Directive is without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions, whether before or after judicial proceedings have started, provided that such legislation does not prevent the parties from exercising their right of access to the judicial system.175

In practice, Spain and Italy are implementing mandatory mediation in their national law. Moreover, Member States can choose to limit the compulsory nature of mediation to specific types of disputes only, leaving this optional for other types of disputes. This option has been taken by Italian legislators in the Legislative Decree no. 28 of March 2010 concerning the regulation of mediation176 which made pre-trial mediation compulsory for a listed category of cases including car accident disputes.

However, the argument which will be addressed here is that whilst the imposition of a compulsory attempt at mediation would facilitate this process and help achieve its objectives, obligatory mediation could create obstacles and restrict free access to judicial proceedings. Moreover, there needs to be a detailed discussion concerning whether mandatory mediation would be contradictory to the general EU principle of effective judicial protection, as enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedom which was signed in Rome in 1950177, as well as Article 47 of the EU Charter of Fundamental Rights.178 Both assert the right to a fair trial and that individuals must

175 _{Directive on Mediation}

176 _{M Marinari, ‘Italy context’ in Giuseppe De Palo and Mary B Trevor (eds), EU Mediation Law and Practice} (Oxford University Press 2012) 185

177 _{Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11} and No. 14 Rome [1950]

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enjoy effective judicial protection. In fact, it is possible to confirm that this concern is addressed by Article 5/2 which explicitly notes: “such legislation does not prevent the parties from exercising their right of access to the judicial system.”179

Firstly, with regards to the principle of effective judicial protection, some have argued that this principle may be subject to some restrictions for the purposes of achieving general interests.180

The preliminary ruling of Case C-28/05 G J Dokter and Others v Minister van Landbouw, Natuur en Voedselkwaliteit:

It should, however, be borne in mind that fundamental rights, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest [...] and that they do not constitute,[...] a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed.181

Thus, it is clear that the nature of the principle of effective judicial protection is non-absolute, which to some extent would allow for the imposition of compulsory mediation. What is more, there is a significant case from The Court of Justice of the European Union (CJEU) which draws attention to this point. The Alassini judgment182 dealt with disputes relating to electronic communication services between end-users and providers of those services. The CJEU was asked to rule on the compatibility of Italian legislation with EU law under which compulsory attempts can be made to pursue alternative dispute resolution, which is considered a condition precedent to proceeding in the courts. The judge held that the national rule in question, which involves Italian legislation, was compatible with the specific provision of the Directive on

179 _{Directive on Mediation}

180 _{Marzocco and Nino, ‘The EU Directive on mediation in civil and commercial matters and the principle of} effective judicial protection’ (2012) 19 Lex et Scientia Journal 105

181_{C-28/05 G J Dokter and Others v Minister van Landbouw, Natuur en Voedselkwaliteit [2006] ECR I-5431} 182_{Alassini -v- Telecom Italia SpA (Environment and Consumers) [2009] EUECJ C-318/08_O}

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Mediation. Indeed, the CJEU found that neither the principle of equivalence183 nor the principle of effectiveness184 _{preclude national legislation from imposing prior implementation of an out-}

of-court settlement procedure.185 According to Marzocco’s analysis of the Alassini judgment, provided that certain requirements and conditions are satisfied, these conditions can be divided into general and special requirements.186

4.5.3.1 General requirements

First of all, concerning the general requirement aspect of the Alassini judgment, this seeks to assert that the imposition of compulsory out-of-court dispute settlement would fulfil the objective of the Directive on Mediation, and should be examined; moreover, the relationship between the Directive on Mediation and the right to access to justice should be evaluated.

It is important at this stage to recall the objective of Directive on Mediation, which as Article 1/1 states is: “to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings”.187 _{Recital 5 also emphasises that:}

The objective of securing better access to justice, as part of the policy of the European Union to establish an area of freedom, security and justice, should encompass access to judicial as well as extrajudicial dispute resolution methods. This Directive should contribute to the proper functioning of the internal market, in particular as concerns the availability of mediation services.188

183 _{The principle of equivalence means a procedural rules governing action cannot be less favourable than those} regulating similar domestic actions.

184 _{The principle of effectiveness which provides that such rules must not make it in practice impossible or} excessively difficult to exercise fundamental rights conferred by EU law such as the right of fair trial.

185 _{Koen Lenaerts, ‘Effective judicial protection in the EU’ <http://ec.europa.eu/justice/events/assises-justice-} 2013/files/interventions/koenlenarts.pdf > accessed 18 January 2014

186 _{Marzocco and Nino, ‘The EU Directive on mediation in civil and commercial matters and the principle of} effective judicial protection’ (2012) 19 Lex et Scientia Journal 105

187 _{Directive on Mediation} 188 _Ibid

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It is clear then that the general requirement is satisfied by the Directive on Mediation as well as pursuing the objective of general interest, which would justify restricting the principle of effective judicial protection.

4.5.3.2 Special requirements

It is of utmost importance to analyse the special requirements provided by the Alassini judgment. Alternative dispute resolution must satisfy these, as the Judgment of the Court (Fourth Chamber) stated that none of these principles preclude national legislation on imposing such procedures, provided that that the procedure:

does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time- barring of claims and that it does not give rise to costs – or gives rise to very low costs – for the parties, and only if electronic means is not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires.189

It is worth dealing with these issues in detail to examine whether the Directive on Mediation does indeed comply with these special requirements. Moreover, national legislation must also satisfy compliance with the EU’s general principles.

The first condition requires not reaching a decision that is binding on the parties. To some extent the facilitative type of mediation means that the mediator is attempting to broker a voluntary agreement, instead of proposing a resolution, as in evaluative mediation.190

189 _{Joined Cases C-317/08 to C-320/08 C-319/08 and C-320/08. Rosalba Alassini and Others v Telecom Italia}

SpA andOthers, Judgment of the EU Court of Justice (Fourth Chamber) of 18 March 2010, para 67

190 _{H. André-Dumont, ‘European Union: The New European Directive on Mediation: Its Impact on Construction} Disputes’ (2009) 26 International Construction Law Review 1

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The second condition is that it does not create a substantial delay for the purposes of bringing legal proceedings. In fact, the Directive mandates for the Member State when implementing such rules to fix time limits for the completion of a mediation attempt, although there are no specific criteria so it could vary in its implementation. For instance, the judgment in the Alassini case set 30 days whilst the other Italian legislation set four months, but this could be based on the ECHR criteria which is related to the reasonable length of proceedings. This states that:

The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute.191

The third condition is that it suspends the period for the time-barring of claims. This condition could also be implemented by national legislation by asserting when the mediation suspends the prescription period.

The fourth condition is that it does not give rise to costs or gives rise to very low costs for the parties involved. This question of the cost raises concerns about how to identify “very low” costs. Indeed, the answer is not clear but it has been suggested that objective criteria can be used which take into account the cost incurred by the parties and the amount of the dispute, as well as subjective criteria, which bear in mind the economic and individual situations of the parties.192

The fifth condition applies only if electronic means are not the only ones by which the settlement procedure may be accessed, and interim measures are possible in exceptional cases

191_{Sürmeli v Germany App no 75529/01 (ECHR, 8 June 2006) para 128}

192 _{Marzocco and Nino, ‘The EU Directive on mediation in civil and commercial matters and the principle of} effective judicial protection’ (2012) 19 Lex et Scientia Journal 105

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where the urgency of the situation requires it. However, in Recital 9 it is clearly stated that “This Directive should not in any way prevent the use of modern communication technologies in the mediation process.”193 _{Even so, this does not mean that modern communication}

technologies have to be used as an exclusive means of mediation. In addition, interim measures cannot be subject to compulsory mediation.

To conclude, it has been confirmed that Member State regulation imposing compulsory mediation attempts would not violate the principle of effective judicial protection, provided that the prescribed requirements as set out by the CJEU judgment are met. Some of these are already satisfied by the Directive itself, whilst others need to be regulated by national legislation.