Ask An Expert: Luciana Breggia

 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: