Matteucci 2014.10.18 ADR and judiciary in Italy (original) (raw)
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Mandatory mediation, the Italian experience - Giovanni Matteucci, May 22, 2015
In 2010 and 2012 Italy had a high number of litigation cases, long-lasting litigation cases and a huge number of lawyers. There has also been a “shrinking” in the litigation market and a tremendous number of pending civil litigious cases. Mediation became compulsory in 2010, facing a furious opposition by lawyers (a matter of culture and a matter of revenues; ADRs perceived as Alarming Drop in Revenues). Training can be seen as the Achilles' heel of Italian mediation proceedings: 50 hours courses have proved insufficient, at least 200 hours would have been necessary On December 2012 the Constitutional Court declared the unconstitutionality of compulsory mediation, due to over-delegation (the Government went beyond its powers in creating the delegated legislation) and not because of the breach of a citizen’s right to defense. Mandatory mediation was reloaded at the end of 2013. The conflicts subjected to mandatory mediation are only the 8% of all the conflicts filed in the Italian courts; their filing had a 9% increase when mandatory mediation was revoked and a 15% decrease when mandatory mediation was back again. Italian judges at the beginning looked at mediation with a "benign neglect", because they considered and still consider it as the "Child of a Lesser God"; the few who have used the ADRs so far have achieved good results. Since 2010 Italy has become a very interesting laboratory to analyze the consequences of different types of ADRs. And I think we are just at the very beginning.
According to the European Parliament (12.9.2017) “Italy uses mediation at a rate six times higher than the rest of Europe”. Mandatory mediation was ruled in 2010 in Italy and came into force in 2011. In 2013 the “Opt-Out” model was introduced. Results : year 2011 - 60,810 proceedings, 9,912 agreements, 16% success rate. year 2016 - 183,977 proceedings, 20,237 agreements, 11% success rate. 20,237 is the highest number of agreements through mediation ever reached in Italy, thanks to: - the judges and the controls carried out by the Ministry of Justice on the mediation bodies; - statistics available at a nationwide level, which allow checking on the results; - the stubbornness of those who believe in mediation, who often work for free. Nevertheless, the success rate scored in 2016 is still far away from that realized in 2011, mainly because of a worsening in the quality of training during the 2010/2011 period. The most efficient mediation bodies, in addition to the courses required by the law, have realized further training and are achieving far higher results than the average.
Mediation and judiciary in Italy 2019
Asia Pacific Mediation Journal, 2019
Mandatory mediation was ruled in 2010 in Italy and came in force in 2011. The Italian judges con order the litigants to undergo a mediation (delegated mediation) (ex art. 5, c.2, D.Lgs. 28/2010) or / and make a solution proposal based on equity (ex art. 185-bis civil procedure code), which the parties are free to accept or refuse (not binding arbitration), in all subjects related to alienable civil rights. When compulsory mediation was ruled the judiciary looked at mediation with a "benign neglect”, but since 2015 it is thanks to the judges that the use of mediation has been increasing in Italy: mediation proceedings delegated by judges were 2% (of all incoming mediation procedures) in 2011, 10% in 2015, 11% in 2016, 13% in 2017, 15% in 2018.
Mediation in Italy, 2011 / 2022 statistics
Mediation in Italy, 2011 / 2022, statistics, 2023
Law 69/2009 and Legislative Decree 28/2010 introduced compulsory civil and commercial mediation into the contemporary Italian legal system, In the 2011 / 2022 period there have been - a decrease in civil court litigation (- 5% per year); - a strong increase in mediation proceedings (+14% per year) and - a strong increase in mediated settlement agreements (+12% per year). 30.06.2023, Riforma Cartabia, mediation 4.0 takes off. The recourse to mediation will increase, but with a substantial risk, its misinterpretation. In other words, the lawyerization of mediation. Does everything have to change for nothing to change ?
Side-Effects of the Growing Trend Towards the Institutionalization of Mediation
Panorama of Brazilian Law, 2013
For some time, Europe, Brazil and the United States have been suffering from the systemic inefficiency of their Courts, with a significant impact on the guarantee of access to justice for their citizens, making alternative dispute resolution (A.D.R.) a constant presence in both civil and common law systems of jurisdiction. The upshot has been the institutionalization of ADRs, taking the form of a routine presence in codes of civil procedure, while their practice is connected to the courts. However, both institutionalization and the obligation to take part in mediation programs before or after starting the suit are exceptional measures, which must be adopted with caution. The experience of the European Union with its Directive, the Brazilian experience of inserting mediation into the project for the new Code of Civil Procedure and the use of mediation to overcome the conflicts arising from the serious mortgage crisis in the U.S.A. will be analyzed in this article, seeking to demonstrate that the progress and diffusion of ADRs does not necessarily entail a breach with their underlying foundation, and particularly with regard to mediation, the loss of its identity, for it to be inserted into the context of access to justice.
Mandatory Mediation, the Italian Experience
Revista Eletrônica de Direito Processual, 2015
In 2010 and 2012 Italy had a high number of litigation cases, long-lasting litigation cases and a huge number of lawyers. There has also been: a "shrinking" in the litigation market and a tremendous number of pending civil litigious cases. Mediation became compulsory in 2010, facing a furious opposition by lawyers (a matter of culture and a matter of revenues; ADRs perceived as Alarming Drop in Revenues). Training can be seen as the Achilles' heel of Italian mediation proceedings: 50 hours courses have proved insufficient, at least 200 hours would have been necessary. On December 12 th , 2012, the Constitutional Court declared the unconstitutionality of compulsory mediation, due to over-delegation (the Government went beyond its powers in creating the delegated legislation) and not because of the breach of a citizen's right to defense. Mandatory mediation was reloaded at the end of 2013. The conflicts subjected to mandatory mediation are only the 8% of all the conflicts filed in the Italian courts; their filing had a 9% increase when mandatory mediation was revoked and a 15% decrease when mandatory mediation was back again. Italian judges at the beginning looked at mediation with a "benign neglect", because they considered and still consider it as the "Child of a Lesser God"; the few who have used the ADRs so far have achieved good results. Since 2010 Italy has become a very interesting laboratory to analyze the consequences of different types of ADRs. And I think we are just at the very beginning. 1. A bit of history-Mediation is part of the Italian legal tradition The Italian State was founded in 1861. In the first Civil Procedure Code (1865) the heading of the introductory seven articles was "Conciliation". According to a law issued in the same year, police officers must first of all reconcile conflicts among private citizens. In 1880 Justices of Peace issued the 70% of all sentences delivered in Italy. According to Law 261/1892 the judge "in order to reach a conciliation, could call for the single party in a private hearing" (an ante litteram caucus). Therefore conciliation / mediation belong to the Italian juridical and judicial culture. But the totalitarian regime carried out during the Fascist period (1922-1943) disliked conflict resolutions reached by private citizens; they must be settled by judges, through sentences. 1941 Civil Procedure Code, art. 183, provided the possibility of conciliation managed by the judge in the pre-trial hearings; nevertheless it is always been a pure formality. The bankruptcy rules have their roots in the "jus mercatorum", developed in Central and Northern Italy around the thirteenth century. These laws included the "affida", i.e. the trust given to the insolvent debtor and fugitive allowing him to return to his city in order to 1 Paper presented at the conference in Bucharest, May 21-22, 2015, under the Project "Strengthening the capacity of the Romanian judicial system to face new legislative and institutional challenges" financed by the Norwegian Financial Mechanism 2009-2014 ; agenda Mediere.docx-Institutul National al Magistraturii .
Mandatory mediation in Italy, 2021: The relevance of training
Academia Letters, 2021
The Italian State was founded in 1861. In the first Civil Procedure Code (1865), the heading of the seven introductory articles was "Conciliation". In 1880, the Justices of Peace issued 70% of all judgments delivered in Italy. According to Law no. 261/1892, the judge "in order to reach a conciliation, could call for the single party in a private hearing" (an ante litteram caucus). Before the first World War the Italian bankruptcy law also provided for negotiation agreements on the settlements of the debtor crisis, under the control of the judge, who, in small claims, could also act as a mediator. The totalitarian regime carried out during the Fascist period (1922-1943) disliked conflict resolutions reached by private citizens; they must be managed by a public authority, the judges, through sentences. Since the 1930s, in Italy, mediation was no longer taught in universities for over seventy years. Mediation belongs to the Italian tradition, but it was forgotten. The Legislative Decree no. 5/2003 ruled 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". The Legislative Decree no. 28/2010 ruled the compulsory civil and commercial mediation (starting on March 2011) in many civil matters. [1] Furious opposition by lawyers (a matter of culture-no training at university-and revenues-Alarming Drops in Revenues) and benign neglect by judges (a matter of culture). Mediation bodies were regulated in detail; 50 hours of training were established, with attention to communication. Civil and commercial mediation took-off; from March 21 to December 31, 2011: registered proceedings 60.810, all parties