THE EU DIRECTIVE ON MEDIATION IN CIVIL AND COMMERCIAL MATTERS AND THE PRINCIPLE OF EFFECTIVE JUDICIAL PROTECTION

The essay concerns the implications of EU Directive 2008/52/EC regarding mediation in civil and commercial matters on the right of effective judicial protection. After having underlined the importance assumed in the European Union by alternative dispute resolution, the essay examines the stages that led European institutions to the adoption of the Directive on mediation in civil and commercial matters. The article addresses the aims and the scope of the Directive and subsequently focuses its attention on Directive dispositions regulating the “key aspects” of civil procedure. The essay emphasizes that the Directive, in substance, allows both optional mediation and compulsory mediation. However, compulsory mediation can contrast with the principle of effective judicial protection. Furthermore, the essay deals with the relationship between compulsory mediation and the principle of effective judicial protection, and identifies, examining a recent pronouncement of the EU Court of Justice, the needed requisites to be respected in order that such contrast does not occur.