Mediation pre-condition to litigation

The case concerned a consumer dispute against an Italian Bank. National legislation in Italy required consumers to attempt to resolve the dispute through the ADR Directive appointed channel in the first instance. The consumer challenged the national legislation but, following the Opinion of the Advocate General, the ECJ confirmed that the requirement was compatible with the objectives of the ADR Directive.

Currently, the Courts of England and Wales do not impose a requirement that mediation be attempted before a claim is issued, but the Practice Direction on Pre-Action Conduct and the general practice of the Courts leads to their expectation that the parties will do all that is reasonable to attempt to resolve the dispute before a claim is issued, and will penalise a party who does not do so in costs. Mediation is heavily favoured by the Courts and there has for some time been a movement by judges and Government towards making it compulsory. This judgment would reinforce that trend by clarifying that it is not incompatible with EC law.