The year of 2016 scored the highest number (20,237) of civil mediation agreements ever reached in Italy. But with a rate of success of 11%, much lower than in 2011 (16%). What could be the possible reasons for this?
Mediation belongs to the Italian juridical tradition. After the Italian state was founded in 1861, the heading of the introductory seven articles of the first Civil Procedure Code (1865) was “conciliation”. In 1880 the Justices of Peace issued the 70% of all sentences delivered in Italy. However the totalitarian regime, instated during the Fascist period (1922 – 1943), disapproved of conflict resolution reached by private citizens and insisted these issues must be settled by judges. Although the 1941 Civil Procedure Code provided the possibility of conciliation managed by the judge in the pre-trial hearings, this was purely a formality. As a consequence, mediation was forgotten.
A mediation Renaissance?
The Legislative Decree no. 5/2003 introduced voluntary mediation in corporate, financial and banking controversies. Nobody (rectius, no lawyer) used it, and when I asked why, lawyers replied: “Because it was not compulsory”.
A high number and lengthy litigation cases, a huge numbers of lawyers, a ‘shrinking‘ in the litigation market, a tremendous number of pending civil litigation cases in the judicial system (5,700,000 in 2009).
In 2010 the compulsory civil mediation was introduced, starting on March 2011. Initially this was met with furious opposition from lawyers (a matter of culture and revenues – ADR as alarming drops in revenues) and until 2013 a benign neglect by judges (a matter of culture). After this, 50 hours of training were established as a requirement. In Italy mediation took-off: from March 21 to December 31, 2011: registered proceedings 60.810, all parties present in 31% of them, agreements 9.912 (with a success rate of 16%), two to three months required to reach the deal.
Over time, the number of proceedings increased but the success rate started to decline. At the beginning of 2011, mediators were professionals with many years of training behind them. Later on many of those, who jumped on the bandwagon, had received poor training – only the minimum of 50 hours. The deterioration in the quality of the mediation process management and worse results, came as an unwelcome consequence.
Mandatory mediation was revoked at the end of 2012 and reintroduced one year later, with significant changes from the previous law.
Among others, these included:
- lawyer mediators ‘ope legis’;
- compulsory lawyers’ assistance (presence) for the parties;
- the first ‘informative’ meeting free of charge;
- the invited party can ‘OPT-OUT’ from the process;
- the possibility for judges (in all subjects related to alienable civil rights) to issue a solution proposal based on equity, which the parties are free to accept or refuse (not binding arbitration) and/or to order litigants to undergo mediation (delegated mediation).
An increasing number of judges started using these opportunities. Judge Massimo Moriconi, Civil Court of Rome, acted as a pioneer. From 23 September 2013 to 10 October 2014 he presided over about 700 cases, according to him, ADR methods could be used in almost 200 cases of those cases. In 121 cases he turned to 40 non-binding arbitrations, 35 delegated mediations and 46 non-binding arbitrations and delegated mediations (