In our 21 June 2010 ADR e-bulletin we reported on the implementation of new domestic Italian legislation requiring parties to engage in mediation as a pre-condition to accessing the Italian courts in many types of disputes. The new legislation coincided with the requirements outlined in the Mediation Directive and was aimed at reducing some of the backlog of over 5 million cases pending in Italy.

On 18 March 2010, in the joined cases of Rosalba Alassini and Others (C-317/08 and C-320/08) the ECJ confirmed an opinion previously given by the Advocate General, that requiring a dispute to be subject to an out of court settlement procedure before being heard in court was not precluded by EU law. The ECJ found that whilst the Italian requirement to undertake ADR before court proceedings might prejudice the implementation of the principle of effective judicial protection, this right is not unconditional. It was a legitimate objective of Italian law, and in the general interest, for parties to pursue less expensive methods of dispute resolution and to lighten the burden on the court system.

This may be contrasted with the view expressed by Lord Justice Dyson in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 that it is wrong to compel unwilling parties to mediate. The Court of Appeal expressed the view that such compulsion would likely be a breach of the right of access to the court required by Article 6 of the European Convention on Human Rights (ECHR), since compelling mediation would probably be regarded as an unacceptable constraint on the right of access. This has been much criticised on the basis that compelling mediation does not fetter the right of the parties to access the court; it simply delays it or demands that the two processes run in parallel. The European approach to ADR indicates that compulsory ADR does not in and of itself give rise to a violation of Article 6 and doubtless the Court of Appeal will have regard to the ECJ's ruling in Rosalba when and if it revisits Halsey in the future.