In order to identify whether this reference was entirely appropriate, it is necessary to look at this case, which concerned Mr Deweer, a Belgian retail butcher in Louvain. His shop was found to be involved in an infringement of a Ministerial Decree of 9 August 1974: “fixing the selling price to the consumer of beef and pig meat.” Mr Deweer faced criminal prosecution and his shop was ordered to undergo provisional closure. The closure was to come to an end either on the conclusion of the criminal proceedings or following the payment of a sum of 10,000 Belgian francs by way of a friendly settlement.
Mr Deweer chose the ‘friendly settlement’ and the payment of 10,000 BF had already been made; however, he filed a dispute to the European Court of Human Rights in Strasbourg on the grounds that there was constraint to access to a fair trial to which he was entitled. The court finally held that “Mr. Deweer’s waiver of a fair trial attended by all the guarantees which are required in the matter by the Convention was tainted by constraint. There has accordingly been a breach of Article 6 par. 1 (art. 6-1).” Thus, he was totally deprived of such a trial since, under
213 Lord Phillips of Worth Matravers, ‘Alternative Dispute Resolution: An English Viewpoint’, 29 March 2008
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constraint, he agreed to its waiver. Hence the court “holds unanimously that there has been breach of paragraph 1 of Article 6 (art. 6-1) of the Convention” and it rejected unanimously the Government’s plea that domestic remedies had not been exhausted.214
It is crucial to turn to LJ Phillips’ analysis of whether it is possible to conclude from this judgment that it is contrary to a person's rights which he or she is entitled to under the terms of the European Convention on Human Rights if he or she has a dispute then the court compels him or her to engage first in ADR, particularly mediation.
First of all, it is important to consider the meaning of ‘compel’, which means to force or oblige (someone) to do something.215 LJ Phillips placed emphasis on the meaning, which could be used to measure whether it is compelling or not concerning sanctions. For example, if one of the parties simply refuses to attempt mediation when the court orders him or her, if he or she is punished with prison or any other specific penalty for contempt of court, then they could be regarded as having been compelled to go to mediation.
In fact, this is not the case here, but instead the right of access to the court was paused for a period of time by saying that unless mediation is attempted the claimant cannot continue with court action, as mediation is ordered by the court on this basis in some jurisdictions.
In other words, it is could be said that refusing to comply with such an order of mediation will lead consequently to hindering the right to continue with the litigation. LJ Phillips stated that “the European Court of Human Rights at Strasbourg might well say that he had been denied his right to a trial in contravention of Article 6”.216
214Deweer v Belgium - 6903/75 [1980] ECHR 1 [1980] ECC 169, [1980] 2 EHRR 439, (1979-80) 2 EHRR 439, (1980) 2 EHRR 439, 2 EHRR 439, [1980] ECHR 1
215Oxford Dictionary of English (3rd edn, Oxford University Press 2010)
216Lord Phillips of Worth Matravers, ‘Alternative Dispute Resolution: An English Viewpoint’, India, 29 March 2008 <http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lcj_adr_india_290308.pdf> accessed 3 April 2014
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A second point supports the proposition that the ordering of compulsory mediation by court is not contrary to Article 6 of the European Convention on Human Rights, namely, that the European Commission has clearly encouraged mediation in Directive 2008/52/EC of 21 May 2008 on certain aspects of mediation in civil and commercial matters.
Article 5, the most significant Article of this Directive concerning recourse to mediation, provides that:
1. A court before which an action is brought may, when appropriate and having regard to all the circumstances of the case, invite the parties to use mediation in order to settle the dispute. The court may also invite the parties to attend an information session on the use of mediation if such sessions are held and are easily available.
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.217
This clearly indicates the European Commission’s intention that not to consider compulsory mediation will impede the right of access to the court, as well as the practice of a number of jurisdictions which compel the parties to resort to ADR, particularly mediation, before litigation.
A third point is that those who oppose compulsory mediation might argue that the whole nature of mediation is built on a voluntary basis, since ‘You can take a horse to water, but you cannot make it drink’; however, those in favour of compulsory mediation reply to this phrase, ‘yes, but if you take a horse to water it usually does drink’. Moreover, in this regard, according to LJ Phillips “the statistics show that settlement rates in relation to parties who have been
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compelled to mediate are just about as high as they are in the case of those who resort to mediation of their own volition.”218
What is more, practice in England and Wales is moving towards this trend of supporting compulsory mediation, for instance in family law disputes, the court may adopt a requirement for the parties to attempt mediation, and the statistics show an 80% success rate.219 The UK
government has also established a National Mediation Helpline. Through this, mediation can be arranged for civil law disputes with fixed fees. There is a 15% year-on-year growth rate planned for this service.220
In conclusion, it may be said that compelling parties to engage in mediation does not deprive them of their right of access to the court. Instead, it means parties still have the right to access to the court but on condition that they also attempt ADR.