An Italian Legislative Decree requiring mandatory pre-trial mediation of civil and commercial cases comes into effect on March 21, 2011. The decree is part of an initiative to reduce the overload on the country’s legal system, which, according to a recent World Bank Report, ranks 157th for enforcing contracts.
The response of Italy’s national lawyers union (Organismo Unitario dell’Avvocatura) has been to call for a national strike from March 16 to March 21, 2011. Lawyers across the country are being asked to abstain from attending hearings in any civil, criminal, tax, or administrative proceedings, and to send clients letters urging them to sign a firm letter protesting the new law, and demanding changes that include eliminating the mandatory requirement to attempt mediation before accessing civil proceedings.
While the Italian strike may be representative of lawyers’ hostility towards mediation, the reaction demonstrates that mediation is not being ignored. On the contrary, the uptake of mediation in many countries appears to be increasing, such that it would be perceived as a threat to those with a stake in judicial inefficiencies.
Indeed, any lawyer who adheres to the strike will likely delay their client’s proceedings via an automatic postponement of several months. Thus, the proposed strike is – ironically – a vibrant illustration of the need for mediation in Italy.
Italy’s Lawyers call for National Strike against Mediation Law – Michael McIlrath, Senior Counsel, Litigation, for the GE Oil & Gas division in Florence, Italy and IMI Chair 2009, blogs on this development from the users’ point of view at: http://www.karlbayer.com/blog/?p=12882?
Mandatory Mediation in Italy
Wall Street Journal Law Blog
Italian Lawyers to Strike
American Lawyer Magazine
Explosion or Bust? Italy’s New Mediation Model Targets Backlogs to ‘Eliminate’ One Million Disputes, Annually
Alternatives to the High Cost of Litigation (newsletter), CPR Institute
Mediating Between the Bar and the Government? Italy’s Attorneys Strike Over a New ADR Law
Alternatives to the High Cost of Litigation (newsletter), CPR Institute
Lawyers’ Resistence to Mediation – Findings of research by Professor Don Peters, Professor of Law and Director Emeritus, Institute for Dispute Resolution, Frederic G. Levin College of Law at the University of Florida.
To read the abridged version of Professor Peters’ research, presented at the 2nd Asian Mediation Association Conference in 2010, click here
Mandatory Mediation: the Italian experience, two years on
Giovanni de Berti gives a 2012 update on the position of mediation in Italy.
Mandatory Mediation in Italy – Reloaded
Rafael Morek reports on the latest developments, via the Kluwer Mediation Blog.
Comments from around the world:
Australia – Joanna Kalowski
“Before we mediators jump to the conclusion that the recently announced strike of Italy’s lawyers over the introduction of a new mediation law is about hostility towards mediation…” [More…]
Germany – Carsten C. Albrecht
“The German government recently proposed a Mediation Act and some changes in other German codes to implement the EU Directive 2008/52/EC into German law.” [More…]
India – Kurian Mathew
“…first of all, the lawyer community should understand themselves; who they are. Law is to be considered as a discipline charted out for a better community living and social existence,” [More…]
Italy – Antonia Marsaglia
“Unfortunately, although certain bars such as the Milan bar have over the last two years done a lot to give lawyers information on mediation, many lawyers are still totally unaware of the professional opportunities offered by mediation as a mean to answer clients expectations.…” [More…]
Scotland – John Sturrock
“Thankfully, here in Scotland, many lawyers are making good use of mediation. Our statistics show that nearly 150 law firms have been involved in mediations…[More…]
UK – Michael Cover
“The benefits of compulsory mediation as the first approach should be obvious. Mediation costs are a ‘drop in the ocean’ compared with the fortune that can be spent on litigation. Mediation is a shorter, simpler process with… [More…]US – Daniel H. Margolis, Esq.
“Italy’s mandatory program appears to be quite similar to some of the mediation programs in certain US state courts, but different from many of the mediation programs in our various federal courts. A law passed some years ago…[More…]
“Before we mediators jump to the conclusion that the recently announced strike of Italy’s lawyers over the introduction of a new mediation law is about hostility towards mediation, let’s think again. This move by Italian lawyers, legal academics and jurists has a wider context.
Under the heading “Berlusconi reveals plan to sue judges for wrong verdicts”, The Sydney Morning Herald, quoting Guardian News and Media, writes that:
“Italian judges and prosecutors who make mistakes could be sued by defendants and made to pay damages under the terms of changes to the courts approved by Silvio Berlusconi’s government….Cabinet approved the…measure the day before the Prime Minister was due …back in the dock accused of buying favourable testimony.
The draft bill provoked anger from opposition leaders and the National Magistrates Association, which said (that) this is a punitive reform whose overall intention is to undermine the autonomy and independence of the judiciary and …upset the …balance between the arms of government.” (SMH, 12-13 March 2011, World p. 17)
This kind of report is not new: for some time, it has been the thrust of reports out of Italy detailing lawyers’ concerns over interference with the judiciary, the way judges are appointed, and public ridicule of judges and judgments which are inimical to the present government.
The new mediation law restricts the practice of mediation to lawyer- mediators. This clumsy attempt to co-opt lawyers in the hope that they would see personal benefit in the introduction of mandatory mediation has backfired. Why? Because mediation is seen by Italian legal practitioners in the wider context of attacks on judicial independence, and hence, as second-rate justice. This is not unknown in Australia and other jurisdictions: the argument goes that those who have the means to do so go to court and are heard by a judge; those who have not go to mediation, without a say in the choice of mediator, and are left to face their opponent and fend for themselves.This kind of move brings mediation into disrepute, and hardly helps its progress to acceptance by the very lawyers who ought to be free to promote it as a true alternative to litigation to corporations and other clients. At issue here is the value of mediation as a voluntary process in the earliest phases of its introduction.
Once mediation is familiar, parties to litigation will tolerate a program of mandatory mediation by a respected court or tribunal, for instance to clear a backlog. There have been many such instances in Australian courts, where mandatory mediation has had a high success rate in certain court programs. But if an entire system is turned over to mediators in a country in which the law itself risks falling into disrepute because of perceptions of political interference, that is a different matter.
Mandatory mediation is one thing. For the Italian government to impose mandatory mediation in all civil cases is entirely another.
I once asked a Chinese legal academic why mediation was not more common in China. His answer? “Mediation flourishes in the shadow of respected courts.”
Mediation and the justice system are complementary. In recognising their interdependence, we should give our support to the rule of law in Italy in whose shadow, as my wise colleague said, mediation can – and will eventually – flourish.”
To download this article by Joanna Kalowski, click here
Carsten C. Albrecht
“The German government recently proposed a Mediation Act and some changes in other German codes to implement the EU Directive 2008/52/EC into German law. The following paper describes the basic provisions of the proposed German code and also addresses some of the disputes which exist already”.
To download the Draft of German Mediation Act, click here
“Germany does not have much tradition in the mediation of commercial disputes. The following case study shows how parties, attorneys and courts might deal with the confidentiality of the mediation process in Germany in subsequent litigation. The judge who reported this case in a German journal believes that the theory of mediation meets reality in this case.”
To download the Case Study – Mediation in Tree Nursery and Confidentiality, click here
“I am least surprised!! The attitude of lawyers in Italy is surely not something rare. It is almost the same in every part of the world. I do think that first of all, the lawyer community should understand themselves; who they are. Law is to be considered as a discipline charted out for a better community living and social existence. Of course, the law books also include procedures to be followed when such discipline is violated; such situation which we call ‘dispute’. Human community, through ages of existence have developed and has been using a number of Dispute Resolution Mechanisms. When a dispute arises between two parties, if one of the parties is ready to ‘forgive’, I do say that it is the best dispute resolution mechanism. Again if that is not possible, they can talk each other, ‘Negotiate’, across the table and bring an end to the conflict. If that too is not effective they may seek the assistance of a ‘Mediator’ to bring an end to the conflict through terms decided upon by themselves. Now if that also fails, they can seek the help of a third party, an ‘Arbitrator’, to adjudicate the issue on agreement that they both will comply with the decision. If, and only if, all such attempts fail, they can sort to ‘litigation’.
The main thing I would like to emphasise is that I am totally against the attitude of some among the lawyer community that they are, and they ‘only’ are, the sole guardians of law and mentors of dispute resolution. During my 7 years of experience as a full time Professional Mediator and as the First and the Only Non Lawyer Mediator in India Accredited by the Supreme Court of India, I do have enough (bitter) experiences from such lawyers.
Disputes are there from the time of Adam and Eve and of course dispute resolutions also were made. All through the ages, it was not lawyers alone who brought dispute resolutions. Also, it was not through litigation only that all disputes till time were resolved. When Litigation remains there as the last resort for dispute resolution, it is the duty of the Governments and all authorities to provide the people all facilities to try for dispute resolution before going to the court. The Government of Italy has done that only. They tried to promote Mediation and other divine alternatives to Litigation.
I feel that it is high time that a community of DR Consultants (Dispute Resolution Consultants) need to emerge. Their duty should not be to fight for their client in court and get them a win, but should try to provide their client with the best resolution within the shortest time. This community should include professionals trained to facilitate Mediation and Conciliation, called ‘Mediators’, Experts trained in Arbitration called ‘Arbitrators’, and of course those educated and trained in legal matters called ‘Lawyers’. Lawyers should understand that they are only one among the Dispute Resolution experts. When a dispute fails to be resolved through all other mechanisms, lawyers may take up the job. But it is pathetic that such an educated community like them protest against the people getting an opportunity to settle their disputes faster, cheaper and amicably. Is this protest against the Government of Italy or against the common man?
Well, Mediation is emerging as one of the prospective professions. Let lawyers also be given training in Mediation and Conciliation. Let them understand that their duty is not limited to performance (fight) in the court, but in a wider perspective as a Dispute Resolution Consultant and facilitator. Further, let this divine profession develop to better heights and by the next generation at least, emerge to be a passion and a part of human culture and civilization. Dear lawyer friends, the quote below is from the autobiography of a former lawyer who practised in the courts of South Africa.
“My joy was boundless. I had learnt the true practice of Law. I had learnt to find out the better side of human nature and to enter men’s heart. I realized the true function of a lawyer was to unite parties. The lesson was so indelibly burnt into me that a large part of my time during the 20 years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby – not even money, certainly not my soul”.
The name of this Lawyer is Mohandas Karamchand Gandhi, and the world calls him ‘Mahatma Gandhi’.
When I write this from India, where Mahatma Gandhi used ‘Satyagraha’ as a tool in the Non Violent revolution against the British to bring about a resolution in ‘some differences of opinion’ between the people of India and the British Empire with regard to the self-determination of people, the universal equality of mankind, liberty, freedom and democracy, I do feel that more tools of dispute resolution still remain undiscovered.
Before going for strike, read the above quote of Mahatma Gandhi thrice; after all, you Lawyers can be proud; one of the greatest icons of mankind was a lawyer !!!!”
“There is indeed a lot of movement around mediation currently. On March 20th pre trial mediation will become compulsory in relation to controversies concerning finance contracts, banking, real estate rights, medical responsibility, succession, divisions, family agreements, leases including leases of business concerns. Defamation, insurance contracts.
As of March 2010 it has been compulsory for lawyers to inform clients in writing on mediation before commencing legal proceedings. The information sheet signed by the client has to be deposited in court.
All this has brought mediation very much to the public’s attention so clients are now starting to seek mediation as a possible mean to solve controversies before going to court.
Unfortunately, although certain bars such as the Milan bar have over the last two years done a lot to give lawyers information on mediation, many lawyers are still totally unaware of the professional opportunities offered by mediation as a mean to answer clients expectations. These lawyers tend to see mediation as something that will complicate their professional life (because they will have to use a tool they do not know how to use) and will impact on their income (because they have not worked out on what basis they can bill their client in mediation). The prospected strike is the result of the pressure that these lawyers are trying to apply on the system. The strike will not have much effect finally.
On the other side there is great activity to train mediators, and several new mediation centres are springing up. Mediators such as myself, who have been around for a while have been registered with the ministry as authorised trainers in mediation and are asked to organise courses to train new mediators who will be needed with the coming into force of compulsory mediation.”
John Sturrock QC
“Law Firms and Mediation – Italian lawyers are apparently striking in protest at a law encouraging mediation. Thankfully, here in Scotland, many lawyers are making good use of mediation. Our statistics show that nearly 150 law firms have been involved in mediations using Core’s services in recent years. Many have been involved on several occasions, some over 40 times. This signals a sea-change in dispute resolution in the past decade – and in the development of problem-solving skills by lawyers who see mediation as a way to help clients to solve problems more quickly and effectively.
As one client said recently: “I just wanted to thank you again for your help and guidance to the conclusion of our thorny dispute. It was a fascinating day, very professionally managed…. My only regret was not to have gone down that road many legal hours earlier. Still, I am richer for the experience.” Clients recognise the benefits and thoughtful, forward-looking lawyers know that mediation helps them to serve their clients interests well.
How often do we hear the remark: “I wish we’d had this discussion two years ago”? As mediators, we hear it a lot. Whether in medical claims, share purchase warranty actions, senior management fallouts, environmental conflicts, professional services’ complaints or sub-contractor disputes, communication breakdown is often the cause. That’s why early intervention with a mediator, even at the deal-building stage, to nip things in the bud, or to establish protocols for future working, makes sense. And it certainly makes sense at the stage of seeking to resolve disputes which have arisen. There will always be resistance from those who fear change. But the future lies with those who will grasp modern ways to address age-old problems!”
“It has been reported that Italian lawyers are planning a strike in response to the new law making mediation compulsory in civil and commercial cases.
The benefits of compulsory mediation as the first approach should be obvious. Mediation costs are a ‘drop in the ocean’ compared with the fortune that can be spent on litigation. Mediation is a shorter, simpler process with a quicker route to a resolved outcome. Going to Court should always be the last resort. Mediation is going to work in the vast majority of cases, which will definitely ease the pressure on the Courts. In Italy, it would appear that those that have been critical of this necessary reform seem mostly to be lawyers, whose primary objective may be to safeguard their generous remuneration. This to some extent mirrors the negative and disappointing reaction of the Law Society in this country to the recent Government proposal to move towards making mediation compulsory in family matters.
The time has come for lawyers everywhere to adjust to the new reality of Early Dispute Resolution.”
Daniel H. Margolis, Esq.
“The information concerning the strike called by Italy’s national lawyers’ union to protest Italy’s new mandatory court mediation requirement for civil and commercial cases was interesting and thought provoking. Italy’s mandatory program appears to be quite similar to some of the mediation programs in certain US state courts, but different from many of the mediation programs in our various federal courts. A law passed some years ago required each of the US District (trial) Courts in our eleven various geographical circuits throughout the country to begin mediation programs. Although the law did not apply to the appellate courts in the various circuits, most of the circuits have adopted some sort of mediation program applicable to cases pending appeal as well as to cases prior to trial. These mediation programs are not all the same, however. I am most familiar with the programs here in federal courts in Washington, District of Columbia (i.e. the District of Columbia Circuit), and in the Superior Court of the District of Columbia, which is a trial court similar to the various state and municipal courts in the US. I have been serving as a mediator in all three of these DC courts since about 1987.
The US District Court and US Court of Appeals for the District of Columbia Circuit each have separate mediation programs applicable to civil and commercial cases. Mediation is not mandatory, however, in either the trial or appellate courts in all cases. In the District (trial) Court, counsel for the parties in a case may jointly request the Judge to refer their case to mediation (and/or the Judge may encourage the parties to try mediation, and the parties may agree). But essentially, referral to mediation by the District Court is consensual. Counsel may decline to agree to try mediation, even if encouraged by the Judge to do so. If the parties agree to try mediation to resolve their dispute, the parties may engage and pay for their own mediator, or they may request the program director for the District Court program to assign a mediator from the Court’s roster. The District Court trial Judge then customarily stays all proceedings in the case for about 60 days to allow for a mediator to be selected and the mediation to proceed, but is not usually informed of the name of the mediator. With the consent of the parties and agreement of the mediator this stay period may be extended to allow more time for the mediation. Those of us who are on the roster of mediators serve pro bono, as a service to the Court. (In some Federal Courts elsewhere in the country, mediators are separately hired and paid for their service by the parties or are staff mediators employed by the Court.) I have found that the amount in dispute is not usually determinative as to whether the parties decide to hire their own mediator. I have served pro bono in many cases in which an adverse judicial outcome if the case went to trial might cost one or more of the parties tens and sometimes hundreds of millions of dollars.
The process for referral of cases to mediation in the Court of Appeals is quite different. The mediation program directors of the DC Circuit programs periodically review the files of cases pending appeal and select about 20% of pending appellate civil cases for mediation. Cases selected include those that may have either been tried to conclusion in the US District Court and/or are federal agency decisions or actions that have been appealed directly to the US Court of Appeal.
The appellate court program directors make their selections based on their appraisal of the likelihood of settlement through mediation. They then discuss the selected case with counsel and appoint a mediator from the appellate court’s roster. Unless counsel persuade the program director that mediation would be futile in the case being considered for referral to mediation, mediation of the selected case is mandatory. Counsel are expected to act in good faith in an effort to reach a settlement agreement. As in cases referred to mediation by a District Court trial Judge, those of us on the US Court of Appeals’ roster of mediators have agreed to serve pro bono, as a service to the Court. Counsel may of course also decide to engage and pay for their own non-roster mediator, but in my experience this rarely happens. In some other federal appellate court programs elsewhere in the country, as in some other District Court programs, the mediators are staff mediators employed by the Courts. In the US Court of Appeals, the judges assigned to a case are not initially informed that a pending appellate case has been selected for mediation, and the mediation proceeds during the period that the case is being briefed for final argument. However, the Court may be asked during the mediation and will normally agree to extend the schedule for briefing and argument if requested by all parties, in order to avoid the possibly unnecessary cost of having counsel prepare and file their briefs and prepare for oral argument during the period while mediation is proceeding.
My impression, and I believe the impression of many others involved in the District of Columbia Circuit’s two federal court programs, as mediators and as counsel, including government counsel representing federal agencies or other governmental entities, is that over time this mediation program has been a great success in reducing significantly the number of cases going to trial or being resolved on appeal. According to the District of Columbia Circuit program director, the current settlement rate for cases referred to mediation in the District Court is approximately 46%, and for the selected cases pending in the US Court of Appeals is about 32%.
The Superior Court program here in the District of Columbia is managed by its Multi Door Dispute Resolution Division and is quite different from the programs in the federal courts. In the Superior Court mediation is essentially mandatory. Virtually all civil and commercial cases pending trial are referred by the program director to mediation prior to trial, and the program director assigns mediators generally without consultation with counsel. Counsel and the parties are expected to mediate in good faith in an effort to settle their dispute. The Superior Court’s civil and commercial case docket, however, is quite different from the docket of cases pending before the US District Court and US Court of Appeals for the District of Columbia, which tend to include many more complex and economically significant cases involving federal statutes and federal agency rules or decisions, and larger and more complex commercial cases. In the Superior Court most of the cases involve automobile accident personal injury claims; divorce disputes; District of Columbia tax disputes or other D.C. agency issues; and real estate and commercial disputes of a less complex nature. Mediations are initially scheduled for a session of two hours held at an annex to the courthouse, although additional dates and time may be scheduled after the first session by agreement of the parties and the mediator. The mediators are paid a small fee ($50) as an honorarium.
Approximately 23% of the cases mediated during the initial two-hour session settle. My impression is that counsel and others involved in the Superior Court program are not as optimistic about the success of the program as are those involved in the federal courts’ programs. This is probably due in large part to the fact that so many of the cases on the Superior Court’s docket are automobile accident personal injury cases in which the insurance carriers for one or more of the parties have the authority to make the determination as to when and how much money will be offered to settle these cases. The insurance carrier representatives who participate in the mediation are often very limited in their authority or willingness to settle. If they settle, many of these cases tend to settle much later, virtually on the courthouse steps, and often not as a direct result of or in the course of mediation. The percentage of all civil cases filed in the Superior Court that settle after mediation ends and before trial, according to the Superior Court’s Multi Door Dispute Resolution Division, is currently about
Do you think it might help the Italian Justice Minister or other Court officials, or the Italian Bar, if they learn more about how our system has evolved and is working? If there is a way to get this material to relevant people please see article Mediation In the US Courts of Appeals.”