Reflection on the Constitutionality of Pre-litigation Compulsory Mediation

Maria Jerónimo

Keywords

Pre-litigation compulsory mediation; constitutionality; right of access to the courts; effective judicial protection; procedural assumption; guarantees; due process; courts; procedural diminishing; voluntariness.

Abstract

Pre-litigation compulsory mediation raises several legal issues, especially when confronted with the fundamental right of access to the courts. In fact, some legal systems have elevated it to the rank of a procedural premise, requiring the parties to solve their problems through this alternative dispute resolution mechanism before initiating a court proceeding. However, the main problem arises if we consider that it can rule out the possibility of citizens to appeal to the courts as a way of solving their problems, which would contravene the Portuguese Constitution. Thus, it is necessary to consider whether such a system fits the Portuguese constitutional requirements of access to justice.