Access to justice and mediation as a prerequisite to judicial proceedings: a comparative law approach and its civil and commercial dimension in the Spanish judicial system

Abstract

In recent years, mediation has come to occupy a central place in European reforms aimed at improving access to justice and enhancing the efficiency of court systems. Increasingly, European legal systems require parties to attempt a dialogue-based mechanism before resorting to judicial proceedings. This article analyses how this requirement is being implemented in different European countries and the real effects it has on citizens and on the justice system. From a comparative perspective, the study examines the extent to which prior mediation helps to reduce litigation and to provide faster and more satisfactory solutions, without jeopardising the fundamental right of access to the courts. Particular attention is paid to the role played by the case law of the Court of Justice of the European Union and to the common framework established by Directive 2008/52/EC. On the basis of these experiences, the article reflects on the challenges and opportunities that mediation as a prerequisite to judicial proceedings poses for the Spanish judicial system following the legislative reform, highlighting its potential as a tool for a more accessible, citizen-centred and effective system of justice.