Judge Luciana Breggia, President of the Second Section of the Tribunal of Florence, speaks about the development of mediation in Italy and the crucial role education can play in forging a more effective dispute resolution culture.
What experiences led you focus on mediation?
At the beginning of my professional career I worked at a law firm in Milan but I have been working as civil judge in the Tribunal of Florence since 1985. During my work experience I dealt with several kinds of conflicts, most of them on topics related to families, corporations, properties, rental agreements, etc.. I often noticed how judges’ decisions give an end to the procedure, but they don’t actually resolve the conflict.
In other words, the judgment often doesn’t deal with the root of the conflict between the parties so that the juridical controversy might rise again in the future. This especially happens when the relationships between the parties are very close, as it occurs in family, property or company legal issues. This experience made me see the shortcomings of the law, and in particular of the judgment and the necessity to allow for, in many cases, ‘friendlier’ systems, which aim to mediate rather than to remove the dispute.
Have there been any recent developments in mediation in the Italian justice system?
In 2009, we launched a project (Nausicaa project) in the Tribunal of Florence, on court-ordered mediation. This project has been realised thanks to the synergies of the Observatory on Civil Justice (an association composed of judges, lawyers and clerks in which they work together), the University of Florence, the Bar Association and the Florence Chamber of Commerce.
The project is based on three essential elements: to offer information about mediation through an information office, located in the Tribunal; to provide judges with assistants who identify disputes to mediate in order to set an agreement; and to monitor ‘court–mandated’ mediation cases. This project constitutes an interesting opportunity for legal training in mediation for judges, lawyers and clerks.
Do you think the full range of disputes resolution processes is available to users?
I don’t’ think that the full range of dispute resolution processes are available to users yet. I think that mediation has the potential to be used more widely and more efficiently. In Italy, lawyers were not in favour of a mediation system when this legal instrument was introduced in our country through the Legislative Decree no. 28/2010, as mandatory step for specific disputes before the trial. Before nobody knew mediation, nowadays the mandatory nature of it allows people to know and use this method.
Then, during an important Lawyers Conference in Rimini on October 2016, the participants approved important motions in favour of alternative dispute resolution (ADR), in particular on mediation. However, it would be useful to provide more training for lawyers, judges and mediators, as well as more information for the public. In fact, people are still not aware of the whole range of ADR instruments and they still view the court trial as the best method for resolving conflicts. For this reason we need to do more in order to increase people’s knowledge and understanding of the different choices available.
What role can education in ADR play in triggering a change in the culture and practice of dispute resolution?
I think that education is a strategic tool for improving the culture and the practice of ADR. Turning to the courts from the outset, in fact, stems from a cultural phenomenon: people are used to immediately calling lawyers and judges in order to resolve their conflicts, only because they are educated in this way. It is the right moment to educate people differently in order to introduce a different culture.
In my opinion this new educational system is of paramount importance. It is necessary to pursue ambitious projects with the aim of investing in school education at every level, even at the primary school level. The main purpose is, first of all, to teach people how to take care of relationships; how to recognise conflicts; how to resolve them in a ‘friendly’ way, by means of negotiation or mediation.
Since 2015, I’ve been carrying out a project in primary schools, middle schools and also in kindergartens. It is extremely impressive how schoolchildren deal with these topics. They often engage in deep thoughts. Further, it is worth noting that the project also involves teachers and families. In this context, for instance, the kids of Scuola di Sant’Orsola (Sassari) classes have put on the stage show “Il giudice alla rovescia”, inspired by the book I wrote, as a final moment of a long path of learning about the rule of law and justice sensibility.
The project has the aim of making the kids wonder about justice themes, which are broader than the rule of law; justice is not only law, and it is useful for children, kids, probably for everyone, to reflect on the fact that each one of us can do their part to resolve conflicts and to strive to have ‘fairer’ relationships, prior to addressing judges and tribunals.
Interviewed by Natasha Mellersh.
Luciana Breggia, President of the Second Section of the Tribunal of Florence, is the author of numerous legal essays and articles and she is particularly committed to the topic of conflict resolution processes. She took part in a government commission tasked with drafting a reform of ADR instruments, presided over by Professor Guido Alpa. She writes essays about mediation for the “Treccani-Il libro dell’anno del diritto” (The Year Law book) published every year by the Italian encyclopedia Institute. On February 2017, she founded the association “Il giudice alla rovescia”, inspired by her book written in 2015.