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The IBA’s response to the war in Ukraine
Studio dell'Avvocato Antich; Senior Vice-Chair, IBA Mediation Committee
Maria Francesca Francese
On 20 March 2010, Italy took the big step of enacting a legal instrument (Legislative Decree 4 March 2010 n 28) to embrace mediation as a way to reduce the heavy workload of the judiciary and more generally to promote a sustainable approach to dispute resolution in civil and commercial matters.
The country was among the first EU Member States to adopt Directive 52/2008 and applied many of its provisions to domestic disputes in a sometimes original way (that had not been followed by other Member States). The legal provisions which drew the most attention by far from lawyers were those considering mediation as mandatory, that is as a condition precedent for accessing the courts (see art 5 para 1 of Legislative Decree 28 above which provides a list of areas of disputes where a mediation is a preliminary step: real estate, condominiums, medical malpractice, wills and testaments, and others).
Following a ruling of the Constitutional Court in December 2012, these mandatory mediation provisions were ruled unconstitutional as beyond the powers delegated to the Government in issuing the instrument. Thus in 2013, a new law (Law Decree 21 June 2013 n 69, converted into Law 9 August 2013 n 98, which came into effect on 21 September 2013) rebooted the mandatory character of mediation, reformulating its content and scope. Parties to a dispute in one of the topics listed in the new art 5 para 1bis Legislative Decree 28 are now required to apply to participate in an information session with a professional mediator, following which they may decide to either remain and participate in the mediation proceeding or opt out and bring the case in court. The degree of commitment in initiating the mediation proceeding and in participating thereof is still the subject of debate among practitioners and many courts have also issued their opinions on that only to confirm the lack of uniformity which can actually be seen in the country.
Another way to promote mediation among litigants went through the provisions entered into force in 2013 which grant to trial judges the power to issue an order to undertake mediation with the case being stayed for a three-month period to allow for mediation proceedings to be carried out.
Of interest, and still the subject of great debate within the legal community, has been the power which some courts gave to the judge to strike out cases from dockets should the parties not have complied with the order to mediate. Although the impact of such measures on the case load of the judiciary can be seen as quite heavy, at present only a few courts in some districts have adopted such an approach and generalisation of the phenomena at the country level is not possible. Moreover, it has been observed that for court-ordered mediation to really take place in great numbers, the best way would be, rather than sanctioning the unwilling parties, to encourage the trial judges to adopt it, for instance by including among the assessment criteria for their efficiency not only the number of judgments issued in the given period of time but also the number of cases referred to mediation which did not return to courts to be litigated along with those others where the judge took an active role in bringing the parties to a recorded settlement.
Of the two main outcomes sought by the Italian Government in employing mediation back in 2010, with the first and narrowest, that is the reduction of judicial workload, it is still doubtful as to whether it has been fulfilled. Despite the Ministry of Justice being required to monitor the development of mediation proceedings throughout the country, complete and accurate statistical data are still hard to get and after more than ten years from its entry into force, a picture of mediation across the country remains unclear.
Regarding the overall impact of mediation on the judicial workload, the following is noteworthy:
The second outcome sought by the Law on Mediation, that is to promote in the country a sustainable approach to dispute resolution in civil and commercial matters, appears to be quite far from being achieved. It is a fact, confirmed by the statistical data available, that voluntary mediation accounts for a very limited part of the overall proceedings activated. It should be noted however, that Italy has a long tradition of using, either formally or informally, mediation, conciliation and third-party intervention to help disputants prevent or avoid conflict. The Chambers of Commerce have been for decades among the few promoters and providers of ADR tools. Both companies and the general public benefitted from conciliation services and several of the better trained and most esteemed Italian mediators today have their training foot back in courses provided by the Chambers of Commerce. It cannot remain unnoticed also that in the legal domain of disputes between consumers and public utilities (like telecoms, power and electricity, water) there has been, at least since the mid 1990s, a large and successful use of mediation with numbers of proceedings carried out and settlements reached which largely exceed those currently reached under the Law on Mediation.
The combination of a mandatory mediation provision set by law, a totally free of charge mediation service provided by outside public authorities and the employment (where available) of skilled mediators appeared to be a good recipe which in turn revealed to be a very effective vehicle of promotion of mediation and conciliation tools to a large group of users.
On 12 March 2021, a government study commission on civil proceedings and ADR was set up to evaluate, among other things, the expansion of the possibilities for recourse to civil and commercial mediation. In a recent statement to the press, the Ministry of Justice and former constitutional Judge Marta Cartabia said that one of her goals is to reduce the length of civil trials by 40 per cent. In fulfilling that goal, MoJ Cartabia set up the 'Commission for the preparation of proposals for interventions in civil proceedings and alternative instruments' composed of several law professors and experts, chaired by Prof Francesco Paolo Luiso. The Commission recently published its final report and the Government has now submitted its proposals to the Parliament where the debate and vote will begin by the end of July.
In terms of mediation, among the alternative instruments being considered by the works of the Commission, the main innovations proposed can be summarised as follows:
If this reform is approved by Parliament, mediation will have the concrete possibility of developing further, bringing the benefits of effectiveness and a more efficient way of resolving disputes to larger group of beneficiaries.