It is not easy to summarise the story of mediation in Italy, but I would like to draw our attention to what, in my view, was a historically fundamental factor in the development of mediation – the contribution of the Italian judiciary, beginning with so-called delegated mediation.
I am referring in particular to the contributions of the city of Florence, site of next month’s Italian Global Pound Conference.
In 2009, the Tribunal of Florence, in collaboration with the Florence Chamber of Commerce and the University of Florence Department of Law, as well as other local entities, launched the ‘Nausicaa Project’ (Progetto Nausicaa), an initiative dedicated to the development of delegated mediation.
Mediation and the law
Although no legislative decree concerning mediation had been widely publicised yet, the Nausicaa project drew inspiration from the principles enshrined in the European Directive n. 52 of 20 May 2008 (on certain aspects of mediation in civil and commercial matters) which maintains that justice is not the exclusive prerogative of the judiciary, but rather the result of forms of procedure best suited to the cases at hand.
The subsequent passage of the Italian Implementing Act led to a few alterations to the original project. In 2012, the Nausicaa Project began to do the following:
1. Offer information about mediation through the Guidance and Information office, located in the Tribunal of Florence;
2. provide judges with young research assistants tasked with identifying the disputes where a solution might be found through mediation;
3. monitor ‘court–mandated’ mediation cases.
From this experiment, it soon emerged that when parties were brought to the mediation table, agreements were reached in 46% of cases. Moreover, sending the parties to mediation had a considerable ‘deflationary effect’, as proceedings before judges often ended with an intervened agreement, even outside of the mediation framework (in 27.3% of cases).
It was in this context that mediation’s best practices were developed – Italian jurisprudence’s subsequent exploration of mediation has been based on this research and these materials. The work of the Florentine judiciary, together with the initiatives of other prescient judges, was undoubtedly fundamental in providing an impetus for later legislative interventions.
Among these individuals, Judge Luciana Breggia, President of the second section of the Tribunal of Florence, stands out in particular for taking part in the Study Commission charged with drafting a system of rules for the reform of ADR instruments, presided over by Professor Guido Alpha.
Through the work of the Alpa Commission, the rulings of the judges of the Tribunal of Florence (e.g. Tribunal of Florence, II sec., March 19, 2014; Tribunal of Florence, III sec., March 17 and 18, 2014) and other Italian tribunals have become the basis for the new mediation reform proposals, currently under examination at the Ministry of Justice.
These proposals concern some of the most crucial principles for successful mediation as advanced by jurisprudence, including, among others, a) the need for personal participation on the part of the concerned parties, b) the importance of good faith and a spirit of collaboration, c) the necessity of effective communication on, d) the extension of legal aid for the pre-trial phase, e) the significance of the so- called ‘first meeting’ as a determining factor, and f) the provision of modest compensation for the mediator, which at the moment is not provided.
Written by Chiara Giovannucci Orlandi.
Professor Chiara Giovannucci Orlandi is the Adjunct Professor of Law at the University of Bologna. She also works as an ADR Expert and Consultant at the Institute for the Promotion of Arbitration and Mediation in the Mediterranean and as A Scientific Consultant at the Milan Chamber of National and International Arbitration and at Unioncamere – the Federation of Italian Chambers of Commerce, Rome(Italy). In addition, she also teaches training Courses in Arbitration and Mediation at Italian Chambers of Commerce and Industry and various other Italian organisations.