The Italian experience in mediation regulation provides a comprehensive view of the various types of mediation and the effectiveness of the various mediation frameworks employed over time. From the late 1990s through 2016, Italy has undergone five different mediation regulatory phases:
1. Voluntary mediation with no regulation of mediation service providers (from the late 1990s to 2004).
2. Voluntary mediation before accredited mediation providers for company disputes (from 2005-2011).
3. Mandatory mediation in certain civil and commercial dispute matters and voluntary recourse to mediation for the majority of other disputes. In order to implement European Directive 2008/52/EC, the Italian legislator enacted Legislative Decree no. 28/2010 making a full mediation a condition precedent for trial in certain subject matters (in place 4 March 2011 to 20 October 2012).
4. Voluntary mediation (from 20 October 2012 to 20 September 2013). Italy’s return to a fully voluntary mediation system for all civil and commercial disputes resulted from an October 2012 decision by the Italian Constitutional Court holding that Legislative Decree no. 28/2010 was unconstitutional for procedural reasons. The Court did not issue a substantive opinion on the mandatory mediation process, leaving the matter to the legislator.
5. A required initial mediation session (from 20 September 2013 to present). In response to a drastic drop in the number of mediations and the increasing number of cases led in the courts, the Italian legislator enacted Law Decree no. 69/2013 amending the original Legislative Decree no. 28/2010, reintroducing, for a limited period of four years, a mitigated mandatory provision requiring an initial mediation session for limited categories of cases.
Finding the right model
Italy’s contemporary history with mediation legislation provides evidence that a required mediation component increases the numbers of mediations in a state. In Italy, before 2011, and despite pro-mediation legislation that had started in 1993, there were virtually no commercial mediations. The state of affairs changed drastically in 2011, when a governmental decree made a full mediation a condition precedent to trial in certain cases.
With the new decree, over one hundred thousand mediations were started on an annual basis, of which about 20% per cent were voluntary cases brought by litigants who did not have an obligation to attempt mediation under the law. Under this model parties had to attend and pay for a full mediation procedure before court proceedings could be initiated.
In late 2012, the rate of mediations declined drastically from over 100,000 to approximately 10,000 per year, when the Constitutional Court ruled that a parliamentary statute was needed – not a governmental decree – to require litigants to attempt mediation before going to court. The constitutionality per se of mandatory mediation was thus not addressed by the decision, which left the matter in the hands of the legislature.
As the number of mediations dropped drastically, including almost all of the voluntary mediations, in September 2013 Italy re-introduced a mediation requirement for certain categories of cases for an experimental period of four years (set to expire in September 2017). This time there was another notable change: Italy removed the obligation to go through and pay for a full mediation process instead only requiring participation in an initial mediation session in certain categories of case.
After almost four years, both the statistics and the acceptance by all the major stakeholders (judges, lawyers, mediators, representatives of Ministry of Justice) has proven, that the Required Initial Mediation Session model combines the advantages of both the mandatory and voluntary models while minimising the burdens by ensuring the following three key elements:
1. The effective beginning of a mediation procedure – by requiring an initial mediation session with a mediator, at a very low cost, with possible sanctions in the subsequent court proceedings if a party does not attend this initial session in good faith;
2. The quality of the procedure – by having the initial mediation session administered by a professional mediator and/or a dedicated mediation service provider;
3. The possibility of easily declining to proceed with the mediation process at the end of the initial session without any subsequent sanctions or other negative consequences at trial.
What the statistics say
The Required Initial Mediation Session model has resulted in almost 200.000 requests for mediations per year in Italy, representing 8% of all civil and commercial cases. In 2016, the statistics published by the Ministry of Justice show that when litigants decide to proceed to mediation after the first required meeting, the nationwide success rate is an average of 43,6%.
Private mediation providers have an even higher success rate of 47,9% (ADR Center reached an average national success rate of 70%). The success rate for public mediation providers varies from Chamber of Commerce of 46,9% to Bar Associations at 37,2%. In the disputes matters subjected to the Initial Required Mediation Session the decrease of new judicial proceedings in court is about 16%.
There is no question, as the statistics prove, that in Italy this regulatory framework is relieving overburdened courts and enhancing citizens access to justice, with overall savings on time and costs, thus not only does this model increase mediations but it also increases the overall effectiveness of the judicial system. At the present time, based on this data the Ministry of Justice is evaluating the possibility of expanding the Initial Required Mediation Session to cover additional subject matters.
Written by Leonardo D’Urso.
This is an extract from the original article entitled ‘The Italian Mediation Law on Civil and Commercial Disputes’, please view the full article here. For more information on the stages of the process view this diagram.
Leonardo D’Urso is the Co-founder and CEO of ADR Center, the first European private mediation provider in terms of number of mediations administrated. With almost 19 years of full-time work in the field of ADR, he is responsible for the managing of ADR Center’s activities, the opening of over 27 Resolution Center in Italy and the creation of ODR Center, an innovative cloud platform developed to manage the mediation process. Senior expert in different international projects on ADR in Europe, Africa, Asia and Central including activities for the creation of a mediation center in Kabul, Afghanistan.