How might new mediation laws change the future of litigation?

Monday 11 March 2024

Federico Antich
Studio dell'avvocato Antich, Florence

Mediation as a concept within law isn’t new. However, in the last two decades, the European Union has made great efforts to push mediation as an alternative to court- based litigation to achieve a “balanced relationship between mediation and judicial proceedings”. 
However, the general consensus is that we’re still far from this goal. Why is this, and what changes might recent laws have on the future of mediation as a resolution tool? 

The recent state of mediation 

Despite EU law making a case for mediation, its usage has been relatively low in the last 10-15 years. Although there is no clear single reason for this, influential factors relate mainly to cultural shifts. While this will vary between countries, a significant issue is lawyers’ losses (ADR or Alarming Drop in Revenues) along with a fear of greater accountability for the decisions of mediation parties. 

Finally, there is the knock-on effect of reducing judges’ workloads. This not only reduces work for judges directly but also decreases the number of hires within court buildings – clerks, admin staff, and other employees. While this is a wider-reaching issue, taking cases out of the courtroom will simply mean less demand for staff. 

But this isn’t to say mediation isn’t currently popular. In Italy, for example, mandatory mediation was introduced as a way to combat case overloads. In fact, Italy uses mediation at a rate six times higher than the European average. However, in 2021, the ratio of settlement agreements to new proceedings was only 0.9 per cent. Why is this? 

Put simply, we are drawn back to cultural issues. Historically, the voluntary characteristic of mediation was seen as a sign of weakness due to a lack of cultural awareness, distorted bias over its best use, and perceived lack of professionalism in the process. Similarly, the settlement agreement was often seen as less powerful than a court judgment, even if they stated the same thing. 

Tackling perceptions of mediation 

Italian perceptions of mediation are by no means unique; these views can be seen in numerous European cultures where “traditional” litigation proceedings take priority. But Italy (and other countries) are looking to remedy this through public awareness campaigns and legislation. 
The Italian government focused its campaign on high-stakes cases that were settled through mediation to demonstrate the wide range of topics that could be covered in mediation. It also ensured mediation providers would administer proceedings through trained mediators who would abide by ethical rules. Highlighting these points to the public was designed to raise awareness and change the cultural perception of mediation. 

Similarly, the government ruled that settlement agreements could become enforceable titles without the need to issue a judgment. Considering this was a major sticking point for mediation use, this small change had a big impact. 
After a decade or so, mediation cases grew to more than 166,000, although its impact on overall litigation remains quite low. But this isn’t the point of mediation; it’s not just to help reduce the burden on the judiciary. Its goal is also to speed up knowledge acquisition and solve viable cases more quickly than if they were dealt with in court. 

Recent law changes and the future of mediation 

Between 2022 and 2023, Italy refurbished its laws relating to mediation as part of the Next Gen EU program. While we have yet to see the full impact of these changes, there is still plenty more legislators could do to promote mediation as an alternative to litigation. 
For example, it must be made more economically viable for parties and the mediator. This could be as simple as making more venues available or taking things online, or even offering cashback incentives. Parties that are in dispute and engage (and settle) during mediation could be reimbursed their court introductory fees, as is the case in some countries already. 

Importantly, too, it will be necessary to increase the scope of mediation, particularly relating to monetary disputes. This might be a complete removal of financial limits or setting a clear and reasonable cap on the financial amounts that could be mediated. 
Similarly, bar associations and law societies will have a role to play in the future of mediation. Ideally, there should be a cultural shift that moves us away from court as a first point of contact to a last resort should other options fail. Mediation is about negotiation rather than litigation, and this should always be the first step in a dispute. 

But what role would bar associations and law societies play in this? Put simply, to wield their influence over the professional culture around dispute resolution. The future of lawyers should be as eclectic learned practitioners rather than courtroom assassins. 

Lawyers should be able to handle the law and apply its provisions in a way that lets it serve its purpose. Then, when a dispute arises, lawyers should be able to bring together parties to let them talk to facilitate a fruitful discussion. Lawyers should be there to guide in the shadow of the law rather than change its interpretation. 

Final thoughts 

Mediation has the potential to be a powerful legal tool once implemented properly. This may be a long process depending on how quickly cultural attitudes shift, but it will arguably be worth it. After all, even the worst dispute can be seen as an opportunity rather than the beginning of an end.