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I N T E R N AT I O N A L                       Mediation                       in Italy                                 BY...
INTERNATIONAL          (ECHR) to the effect that delays in the Italian        heavily on Decree No. 28, which, as we shall...
2001/2003 Legislative Initiatives                     71.4% in non-chamber-administered cases, but   Mediation initiatives...
INTERNATIONAL             Italy’s approach to banking and financial serv-   dated June 18, 2009, which authorized the re- ...
(3) It provides for costs, including fees for          A comprehensive review of Decree No. 28 andmediator-appointed exper...
INTERNATIONAL          mulate a “proposal for conciliation” and inform            In response to the concern that a mediat...
cases that were already subject to suspension          March 18, 2010, the ECJ considered whetherpending mediation, includ...
INTERNATIONAL          ble abuse (for example, bringing multiple media-       that they go beyond the terms of the decree,...
ENDNOTES   1      Law No. 89/2001.                         tion of disputes),” Pol. Dir. 403 et seq.     codice di procedu...
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Galletto & mattiaccio

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Transcript of "Galletto & mattiaccio"

  1. 1. I N T E R N AT I O N A L Mediation in Italy BY TOMASO GALLETTO AND RICHARD L. MATTIACCIO A Bridge Too Far? The history of mediation in Italy, the real story behind Italy’s new mediation decree, and the issues that have provoked controversy. ot all litigation Tomaso Galletto is a partner Nbacklogs are made the same. In Italy, the backlog in in Studio Alpa e Galletto, Genoa & Rome, Italy. He is also a professor of law at the Univer- sity of Genoa and a vice president of the European Court of Arbitra- civil litigation has been so tion (Italian delegation). In addition, extreme that, in 2001, he is the author of several publica- tions in Italian on arbitration, media- Italy’s parliament passed a tion and civil procedure. law entitling litigants to Richard L. Mattiaccio is an ADR and liti- recover compensation from gation partner in Squire Sanders & the justice system for excessive Dempsey LLP, in New York. He has repre- sented parties in international arbitration and delays in civil cases. 1 Named has participated in arbitration-related litiga- after its sponsor, the so-called tion in U.S. and Italian courts. He serves on Pinto Law is a legislative response panels of the International Centre for Dispute Resolution (ICDR), a division of the American to repeated decisions of the Arbitration Association (AAA) and other institu- European Court of Human Rights tions. He also serves as a mediator.Reprinted with permission from the Dispute Resolution Journal, vol. 66, no. 3 (August-October 2011), a publication of the American Arbitration Association, 1633 Broadway, New York, NY 10019-6708, 212.716.5800, www.adr.org.
  2. 2. INTERNATIONAL (ECHR) to the effect that delays in the Italian heavily on Decree No. 28, which, as we shall see, civil proceedings exceeded a reasonable length, in has been the subject of vehement arguments for violation of Article 6 2 of the European Con - and against compulsory mediation. vention on Human Rights. In fact, Italian appel- late courts routinely award litigants damages for Background excessive delays in legal proceedings. Those Mediation in Italy is not new. Since 1942, delays have not abated, however, and cases con- Italy’s Code of Civil Procedure (c.p.c.) has pro- tinue to be filed against Italy in the ECHR for vided for voluntary mediation in cases pending excessive delay in its civil justice system.3 before a justice of the peace.9 Mediation also has It should come as no surprise that mediation4 been available for some time in contracts related has been a hot topic in Italy for over a decade. to suppliers, farming, employment and landlord- Case backlogs, particularly cases that make news, tenant relations. However, there is no single such as those claiming human rights violations at model of mediation. Sometimes mediation is the ECHR, and Pinto Law claims (such as the required to take place in the presence of the estate case that dragged on for over 22 years5), judge who will decide the merits of the case; in and cold, hard statistics have put pressure on other cases mediation proceeds before neutrals Italy’s Parliament to promote mediation as the fix who are independent of the judicial system. Some for a civil justice system that is broken. mediation procedures result in enforceable deci- Statistics show that, in the three-year report- sions; others result in proposed agreements that ing period 2007-2009, cases at the tribunal (trial) the parties must accept in order to become effec- The sudden introduction of a nationwide system of compulsory mediation with an express reference to a role for bar associations as mediation providers presents a challenge for Italy’s legal profession. level ranged in duration, depending on the year tive. Until recently, most forms of mediation in and form of decision, from approximately 15.2 to use in Italy have been imposed as a condition 28.1 months. During the same reporting period, precedent to the pursuit of specific categories of the duration of an appeal at the court of appeals legal proceedings, and so have not been based on level ranged, depending on the same factors, the voluntary participation of the parties. from approximately 37.9 to 52.5 months. Also during that period, relatively smaller matters 1993: Enter the Chambers of before justices of the peace ranged in duration Commerce from 9.7 to 14 months. Law No. 580, enacted in 1993, restructured During the period July 1, 2008, through June Italy’s chambers of commerce, giving them a 30, 2010, the total number of pending civil cases broad mandate to develop mediation in their fell a slight 0.8%, from 5,649,970 to a still-daunt- assigned territories. This mandate included: ing 5,602,616 cases.6 Nearly six million pending (i) Promoting the development of commissions civil cases in a nation of 60.7 million people for arbitration or conciliation, whether in com- would appear to make a compelling case for mercial or consumer cases. mediation. (ii) Developing and promoting standard form As a result, mediation has been the subject of contracts between or among businesses, their two recent legislative initiatives at the national associations, consumers and consumer associa- level—initiatives that have received quite a bit of tions. publicity in the international arbitration commu- nity due to controversial provisions, particularly (iii) Appearing in cases related to economic, the compulsory mediation provision in Decree industrial or commercial crimes and to promote No. 28, dated March 4, 2010.7 legal actions to discourage unfair competition. This article provides an overview of Italy’s However, the 1993 statute was roundly criti- mediation initiatives and highlights the provi- cized for being incomprehensive, poorly organ- sions that make the emerging mediation scheme ized and in some respects, internally incon - distinctive and controversial. 8 We focus most sistent.102 AUGUST/OCTOBER 2011
  3. 3. 2001/2003 Legislative Initiatives 71.4% in non-chamber-administered cases, but Mediation initiatives at the legislative level only 55.75% in chamber-administered cases. Thebegan early in the 21st century with the reform rate of noncompliance with the results of media-of the corporate law by Law 366, dated Oct. 3, tion ranged from 63.2% in chamber of com-2001. This law, which entered into force on Jan. merce cases to 46.7% in other administered1, 2004, authorized the Italian Government “to mediations. Noncompliance in Corecom casesprovide forms of conciliation of civil disputes stood at a relatively low rate of 16.3%.12related to company law, including disputesbrought before private bodies and entities, that 2008 Financial Services Mediationguarantee seriousness and efficiency, and which Two distinct and overlapping systems of ADRare written in a special register maintained at the in the financial services sector were put in placeMinistry of Justice.”11 Pursuant to that authority, in 2007-2008: (1) a procedure administered bythe government issued Decree No. 5 of Jan. 17, CONSOB, Italy’s equivalent of the Securities2003. Title VI of this decree contained rules gov- and Exchange Commission for retail customererning extra-judicial mediation. The commentary claims against financial services providers, andon the decree stated that the intent of the rules (2) a procedure administered by the Bank of Italywas to “regulate alternative methods of resolving to ensure transparency in banking services.disputes administered by public and private enti- CONSOB was authorized and delegated regula-ties, under the supervision of tory authority by Decree No.the Ministry of Justice….” 179, dated Oct. 8, 2008, toThus, the 2003 Decree was in-fluential in drawing the distinc- The question of establish a Chamber for Con- cil iation and Arbitrationtion between judicial and extra- whether Decree (CONSOB Chamber). Pur -judicial mediation (e.g., out of suant to CONSOB Decisioncourt mediation). No. 28 authorized No. 16763, dated Dec. 29, 2009, CONSOB established aPredominance of Consumer the government purely facilitative mediationClaims procedure for claims initiated Beginning with a small num- to render media- by retail customers that couldber of mediations filed duringthe period 2005-2008, media- tion compulsory result in a self-executing agree- ment convertible to a judgmenttion filings at the chambers ofcommerce peaked at 20,246 in is pending. by the chief judge of the tribu- nal court with jurisdiction over2008 and then declined to the territory in which the18,642 in 2009. By contrast, consumer mediation mediation took place.claims against telecom providers increased with- Under the established procedure, in the eventout interruption. The cases administered by the a mediation does not result in an agreement, theRegional Committee for Con ciliation (Core - mediator may issue a proposed resolution at thecom), which was established to hear consumer request of the parties. If the parties do not accepttelecom disputes by Law No. 249 of 1997, num- the proposal, each party may indicate its finalbered 8,434 in 2005 and 43,403 in 2009. In 2009, position or the terms on which it would be pre-telecom cases administered by Corecom and by pared to settle; the mediator would then memori-the chambers of commerce accounted for 67% of alize the parties’ positions in the mediator’sall cases submitted to mediation. report to the CONSOB Chamber.13 Resort to mediation in Italy tends to be limited Also in 2008, the Inter-ministerial Committeeto relatively low-stakes consumer claims (a medi- for Credit and Savings (CICR), based on legisla-an of Euro 400 in Corecom cases, Euro 14,400 in tion passed in 2005 with the support of the Bankchamber of commerce cases, and Euro 28,042 in of Italy, published rules and procedures for a newother administered mediations). Most adminis- entity called the Arbitrator of Banking and Fin-tered mediations are provided on a cost-free or ance (ABF). On June 18, 2009, the Bank of Italynearly cost-free basis by the chambers of com- modified these rules and issued supplementalmerce or other governmental authorities. rules and procedures for ABF proceedings. The With regard to duration, in 2009, chamber of apparent overlap of the CONSOB and ABF pro-commerce mediations lasted an average of 67 cedures was expected to result in an agreementdays, 50 days for other administered mediation, between the two entities to define more clearlyand 90 days for Corecom cases. Reported success their respective areas of jurisdiction. So far thisrates ranged from 72.4% for Corecom cases to has not happened.DISPUTE RESOLUTION JOURNAL 3
  4. 4. INTERNATIONAL Italy’s approach to banking and financial serv- dated June 18, 2009, which authorized the re- ices disputes appears to have little in common form of Italy’s civil litigation system and the cre- either with mediation or arbitration. The claim- ation of a comprehensive mediation program for ant must first exhaust the internal review remedy civil and commercial cases. of the financial service provider; if the customer does not accept the proposed resolution, then the 2009 Civil Justice Reform Legislation dispute is submitted to arbitration, but the award Law No. 69, enacted in 2009, expressly incorpo- is not binding on the service provider. The Bank rates the basic principles of the EU Mediation of Italy has indicated that it intends to maintain Directive. However, this directive does not clearly on its Web site a blacklist of service providers call for member states to require compulsory medi- that do not comply with arbitral awards, but has ation (i.e., barring access to the courts until media- not indicated when it intends to do so. tion is tried). Instead, it provides that it is “without prejudice to national legislation making the use of Privately Sponsored Mediation mediation compulsory or subject to incentives or Since 1993, a number of privately sponsored sanctions, whether before or after judicial proceed- mediation initiatives have become available in ings have started, provided that such legislation Scholars have pointed out that the training and culture of litigation attorneys, their concerns about loss of control and income, and their rule-based, winner-take-all approach to conflict resolution is not particularly con- ducive to searching for creative solutions in mediation. Italy through the European Court of Arbitration, does not prevent the parties from exercising their the Milan Chamber of Commerce, the chambers right of access to the judicial system.” of arbitration and conciliation of the Court of Law No. 69 does not authorize the govern- Appeals of Rome, and ISDACI (the Institute for ment to bar access to courts because any absolute the Diffusion of Arbitral Culture). However, pri- bar to pursuing rights in the Italian courts would vately sponsored mediation has not resulted in a invite a constitutional challenge based on Article significant number of mediations. In 2009, 55 24 of the Italian Constitution. Italy’s Parliament recognized private mediation providers adminis- was less than clear, however, as to whether the tered only 316 cases; this corresponds to 0.3% of government could provide for compulsory medi- the 93,406 cases in mediation.14 Recent legisla- ation, and if it could, within what limits. tive reform efforts may encourage resort to pri- Law No. 69 contains detailed provisions re- vate mediation. garding the professionalism and independence of the providers of mediation services (i.e., media- The 2008 EU Mediation Directive tors) and the need for those providers to be regis- The EU Directive 2008/52/CE on mediation tered with the Ministry of Justice. It authorizes in civil and commercial matters (EU Mediation bar associations (and, in certain categories of Directive), adopted on May 21, 2008, was a cul- cases, other professional organizations) to: (i) mination of an extensive effort that began in May establish a list of qualified mediators to hear dis- 2000. 15 This directive applies by its terms to putes referred to mediation by the tribunal trans-border civil and commercial disputes; it courts, and (ii) register those mediators with the expressly does not preclude member states from Ministry of Justice. implementing mediation regimes at the national Law No. 69 also contains other important level. mediation provisions: As a founding member of the EU, Italy strives (1) It obliges attorneys to advise their clients, to both influence and act in line with EU direc- before initiating litigation, of the availability of tives. Italy interpreted the EU Mediation Di- mediation through registered mediators. rective as an invitation to adopt a comprehensive civil and commercial mediation statute consistent (2) It limits the duration of mediation to four with the EU approach. The result was Law 69, months.4 AUGUST/OCTOBER 2011
  5. 5. (3) It provides for costs, including fees for A comprehensive review of Decree No. 28 andmediator-appointed experts whose compensation Regulation No. 180 is beyond the scope of thisis to be set at the time of appointment. article.17 The following discussion is intended to (4) It allows for a “success fee” to the mediator highlight only the more distinctive and contro-if the mediation results in a settlement. versial aspects of the Italian mediation. (5) It also requires a sufficient separation of Criticism and Controversyroles to ensure that the mediator is neutral, inde- Decree No. 28 attracted considerable criticismpendent and impartial. from Italian legal scholars, the Superior Council In Law No. 69, Parliament authorized the gov- of Magistrates, and the Commission on the Studyernment to provide the courts with discretion: of Mediation and Conciliation of the Consiglio (1) To decide not to shift fees and expenses to Nazionale Forense (national bar association). 18the prevailing party at the conclusion of litigation Supporters of the decree have argued that com-if that party turned down a proposal in mediation pulsory mediation will increase the use of media-that would have provided all the relief provided tion and is more likely to help reduce the courts’in the judgment or award. backlog, particularly in small, individual con- In 2010, the ECJ ruled that compulsory mediation of con- sumer telecommunications disputes does not violate EUprinciples if certain conditions are met and the mandatory scheme is intended to be more effective in reducing docket congestion than a purely voluntary system. (2) To award the non-prevailing party its fees sumer rights cases.19 Critics have argued that theand expenses, and impose an additional payment legislation is inconsistent with the 2008 EUon the prevailing party for having rejected the Mediation Directive’s emphasis on a process thatoffer in mediation. is voluntary, facilitative and confidential, and: (3) To enforce a settlement agreement reached • offers trained mediators following fair andin mediation. efficient procedures, (4) To recognize the record of a successful • avoids the direct involvement of the judgemediation (i.e., the settlement agreement) as a who will decide the merits,basis for a recorded lien. • does not provide for automatic issuance of a Italy’s government then drafted a decree to mediator’s proposal,implement Law No. 69 along the general policy • does not preclude the parties from pursuinglines set forth therein. conventional remedies in court, • does not discourage legal representation, andImplementation of Italy’s Mediation • would have the benefit of enforceability of anyProgram resulting agreement in EU member states.20 Decree No. 28, dated March 4, 2010, consistsof 24 articles and is accompanied by an explana- The following discussion highlights some oftory memorandum as to some of the more con- the distinctive aspects of the Italian mediationtroversial provisions. The decree incorporates the scheme that tend to make Decree No. 28 contro-preexisting mediation programs for telecom dis- versial.putes, banking and financial services mediation,and programs in certain specialized fields. One of The Mediator’s Proposalthe more confidential provisions makes participa- The original version of Decree No. 28 re -tion in mediation a condition of the continued quired evaluative mediation. Article 1(a) definedprogress of civil cases filed in court.16 mediation to include “the formulation of a pro- Regulation No. 180, issued on Oct. 18, 2010, posal for resolution [of the dispute].” Article 11established the registry for mediators and set a provided that, if the parties were unable to reachstandard fee schedule for them. agreement, the mediator would be obliged to for-DISPUTE RESOLUTION JOURNAL 5
  6. 6. INTERNATIONAL mulate a “proposal for conciliation” and inform In response to the concern that a mediator’s the parties beforehand of the risk that the costs of proposal will lead to the disclosure of confidential litigation could be shifted to a party that rejects information, the memorandum allows for the the proposal if the ultimate decision in litigation possibility that a mediation proceeding could corresponds to the mediator’s proposal. Article have two separate mediators, one facilitative and 13 provided that the court: (i) must impose the one evaluative, who do not compare notes. The costs of future litigation on the party that reject- explanatory memorandum does not address ed the mediator’s proposal, if the ultimate deci- whether the evaluative mediator will be in a posi- sion on the merits corresponded exactly to the tion to make a proposal designed to result in set- mediator’s proposal, and (ii) may do so, in the tlement. event of serious and exceptional circumstances to be explained in the award, if the decision on the Mediate or Else merits did not correspond exactly to the media- Article 8.5 of Decree No. 28 states that a judge tor’s proposal. may draw adverse evidentiary inferences against a The requirement of a mediator proposal and party that fails to participate in a mediation with- its potential cost-shifting conse- out sufficient justification. There quences prompted concern about appears to be nothing in Law the risk of compromising the Lawyers have No. 69 authorizing a sanction of confidentiality of mediation. Critics argued that the record of a an obligation this sort. Moreover, no distinc- tion is made between participa- failed agreement was bound to end up in court, even if only for under the leg- tion in facilitative mediation or the evaluative phase of media- the official purpose of providing a islative scheme tion. To the extent that the sanc- potential basis for cost shifting at tion applies, it arguably results in the end of the case. Moreover, to inform clients some duress, which is inconsis- critics pointed out the risk that, tent with the voluntary nature of in preparing the report, the medi- clearly and in facilitative mediation. Moreover, ator could hardly avoid making even in litigation, contempt of reference to information submit- writing as to the the Italian court for failure to ted by the parties in the course of the mediation, and that this com- availability of appear and defend does not result in the sanction of an promise of confidentiality could inhibit parties from being open in mediation and adverse inference.22 This is true in labor law cases as well.23 In- mediation. They also noted that its costs. deed, the Constitutional Court the requirement of a mediator’s has held that adverse inferences proposal was not authorized by the EU Me - violate general principles of Italy’s procedural diation Directive or any precedents in Italian law.24 Thus, Article 8.5 may exceed the authority mediation practice, and that it could result in a delegated by the legislature, which could be a penalty on a party for not accepting that propos- fatal constitutional defect. Since adverse infer- al. Critics also said that the mediator proposal ences cannot be drawn from a failure to partici- requirement was inconsistent with Decree No. 5 pate at a trial on the merits in court, the propri- of 2003. They further argued that the seeds of ety of a mediation rule that appears to allow for failure were planted in this heavy-handed provi- such inferences from a failure to participate in sion.21 the facilitative portion of the mediation process is The Justice Ministry responded to these criti- questionable. cisms by removing the obligatory nature of the mediator proposal from Article 11. The final ver- Mandatory Mediation in Certain Cases sion of this article provides that, in the absence of The Justice Ministry estimates that about one a settlement in mediation, the mediator may offer million cases have become subject to suspension a proposed resolution if the parties request it and pending mediation under Decree No. 28. The the mediator considers it appropriate to do so. categories of affected cases include customer The explanatory memorandum accompanying claims in insurance, banking and financial servic- Decree No. 28 characterizes this approach as a es, disputes related to the leasing of companies, synthesis of the varying positions taken in re- condominium, leasing, landlord/tenant and other sponse to the original version of the decree. It real estate-related disputes, estates, litigation, also states that a mediator’s proposal tends to medical malpractice claims, and libel cases, serve the interest in finality. among others. The estimate does not include6 AUGUST/OCTOBER 2011
  7. 7. cases that were already subject to suspension March 18, 2010, the ECJ considered whetherpending mediation, including claims against compulsory mediation of a consumer case in thetelecommunications providers, and vehicular telecommunications sector, which is authorizedaccidents (the latter to be included in the catego- by Law No. 249 of 1997, violates EU principles.ry of affected cases starting on March 20, 2012). It ruled that the answer is no if the compulsory The memorandum accompanying the decree scheme meets certain conditions and it is intend-argues that a challenge to the decree based on ed to be more effective than a purely voluntaryArticle 24 of the Constitution is not likely to be scheme in reducing docket congestion. The con-successful in view of the public interest in reduc- ditions include:ing docket congestion in the courts and prece- (i) the mediation process does not render im-dents rejecting Article 24 challenges in cases possible or excessively difficult the enforcementinvolving labor/employment and agrarian dis- of any rights conferred pursuant to EU law,putes. This argument appears even less likely tosucceed than an argument that the Justice (ii) the mediation does not result in a third-Ministry exceeded the authority granted in party decision binding on the parties and doesthe underlying legislation. However, not bar the parties from pursuing their rights inneither Law No. 69 nor the court,EU Mediation Directive (iii) the mediation does not result in substan-expressly authorizes a tial delay in pursuit of litigation in court,mediation scheme in (iv) the statute of limitations is tolled pendingwhich cases are sus- mediation, andpended pending media-tion. Law No. 69 appears to point to (v) the cost of mediation is not material.27the 2003 decree calling for con- Critics of Decree No. 28 argue that sus-ciliation as the model on pending millions of cases while trainingwhich to base the new com- thousands of mediators and estab-pany law. But this statute lishing local provider organizationsdoes not oblige the parties to will result in substantial delay andproceed to mediation.25 additional expense and could be a practi- A potential challenge raised by the Magis- cal bar to litigation in court in certaintrates’ Council lies in the lack of express cases. They call attention to the require-authorization in Law No. 69 or the EU ment that “the parties be informed of theirMediation Directive, or any principled rationale right to refuse to participate in the [mediation]in the jurisprudence, for the creation of two dif- procedure” and argue that, at least when the caseferent tracks for civil cases: one that leaves medi- involves consumer rights, there can be no nega-ation to the discretion of the parties, and another tive consequence of any sort for refusal to partici-that requires an attempt at mediation as a condi- pate in mediation.tion for the case to proceed in court (cases sub-ject to obligatory mediation). The Magistrates’ Mediator QualificationsCouncil also has questioned the likelihood of suc- Regulation No. 180 provides that a mediatorcess of compulsory mediation in the following must have a three-year university degree or be aterms: “Mediation can be successful only if sus- member in good standing of a professionaltained by a real willingness to settle and if it is organization and have at least 50 hours28 of medi-not based on a need to satisfy an obligation.” The ator training provided by an educational institu-Magistrates’ Council suggested that the parties tion. Legal scholars and the Magistrates’ Councilwould go through the motions to meet their for- have expressed concern about the decision not tomal obligations to participate in mediation and require any legal training, particularly sincethen proceed with litigation. Under this scenario, mediators are obligated to (i) ascertain that themediation would only render civil litigation more rights being asserted have some basis in the lawcostly and time-consuming than it is in its cur- and (ii) ensure that the result of the mediationrent state of gridlock. does not violate public policy.29 In theory, at least, conditioning the advance-ment of a lawsuit on participating in mediation is Locale of Mediationlikely to pass constitutional muster in Italy if the Decree No. 28 does not establish any criteriasuspension is limited in time, on the ground that for selecting the locale of the mediation. Criticsit will not bar access to the courts either through argue that, particularly with respect to compulsorydelay or prohibitive cost.26 In a decision dated mediation, a locale rule is needed to prevent possi-DISPUTE RESOLUTION JOURNAL 7
  8. 8. INTERNATIONAL ble abuse (for example, bringing multiple media- that they go beyond the terms of the decree, tion proceedings in different locations) and pre- which could render the sanctions invalid and vent additional delays in the civil justice system. ineffective. However, if the sanctions prove to be Both houses of Parliament and the Magistrates’ effective, a practical solution may be to include a Council expressed a preference for including a rule notice of the availability of mediation and its concerning the locale but the Justice Ministry dis- costs in the standard form authorization that a agreed and defended its decision in the memoran- client must execute in order for an attorney to dum accompanying the decree. commence a lawsuit. The Role of Attorneys Recent Developments Mediation, like arbitration and other forms of In April 12, 2011, the regional administrative alternative dispute resolution, remains largely tribunal (T.A.R.) of Lazio (the region including unknown to practicing lawyers and law students Rome) referred to Italy’s Constitutional Court in Italy.30 The point has been made in scholarly the question of whether Parliament, in issuing literature that the training and culture of litiga- Decree No. 28 (implementing Law 69), had tion attorneys, their concerns about loss of con- authorized the government to render mediation trol and income, and their rules-based winner- compulsory.32 The case is pending. In the inter- take-all approach to conflict resolution is not par- im, further legislation may be enacted to resolve ticularly conducive to searching for creative win- the issue. win solutions, a goal of mediation.31 With regard to the role of lawyers as advocates The sudden introduction of a nationwide sys- in mediation—an issue of great concern to the tem of compulsory mediation with an express ref- Italian bar in view of the fact that Decree No. 28 erence to a role for bar associations as mediation does not require legal representation in a media- providers presents a challenge for Italy’s legal tion process that could be both mandatory and profession. Even though the decree and the regu- evaluative—a seemingly productive meeting took lations do not require mediators to be lawyers or place on May 10, 2011, between Guido Alpa, for mediating parties to be represented by coun- president of the national bar association (CNF), sel, the prospect of evaluative mediation that and Angelino Alfano, then Italy’s justice minister. could result in a mediator’s proposal and con- In that meeting, the minister indicated that he cerns about preserving confidentiality tend to would consider modifying Decree No. 28 to re- suggest the need for attorneys to take on these quire representation by counsel at mediations in roles even if legislation and regulation do not re- which the amount in controversy exceeds a mini- quire it. Not surprisingly, the Consiglio Nazionale mum value (in the range of Euro 7,000-10,000), Forense has established a commission to promul- as well as strict limits on the categories of cases in gate rules for the conduct of mediation under the which mediation would be compulsory. auspices of the various bar associations, together with standards for the training of bar association Conclusion mediators. The need for alternative dispute resolution in The pressure to control the cost of resolving Italy is real, and the desire on the part of Italy’s cases involving relatively small amounts in con- Parliament and government to make good use of troversy (of which there are far too many) points mediation is genuine. A sense of urgency and an toward the development of programs to train apparent reluctance to trust in voluntary and recent law graduates to serve as mediators. This facilitative approaches has prompted the govern- training could include disciplines not traditional- ment to pressure parties to submit to compulsory ly taught in law school in Italy, including the art mediation. In issuing Decree 28, the government of negotiation. This could not only generate also invited legal and constitutional challenges opportunities for professional development early and has disregarded, or at least discounted the in a practicing lawyer’s career, it also could have evolving international consensus that mediation a long-term impact on the nature of the legal tends to be more effective when the parties freely profession. choose to participate and less effective when they Lawyers have an obligation under the legisla- are forced to do so. tive scheme to inform clients clearly and in writ- The exact contours of mediation in Italy re- ing as to the availability of mediation and its main to be set. It seems likely, however, that costs. Failure to do so would appear to place the Italian mediation will feature a unique set of attorney at risk of: (i) being unable to enforce the characteristics, and that Italy’s experience in the terms of engagement and (ii) disciplinary action. next few years will test prevailing assumptions Critics of these sanctions for nondisclosure argue about the mediation process. I8 AUGUST/OCTOBER 2011
  9. 9. ENDNOTES 1 Law No. 89/2001. tion of disputes),” Pol. Dir. 403 et seq. codice di procedura civile (Changes to the 2 For a brief overview of the crisis (1997); L. Rubino, “I procedimenti (The Code of Civil Procedure) 233-34 (Alpa,and repeated attempts at reform of the Proceedings),” in La riforma del diritto ed., 2010). societario (The reform of company law) 22 The jurisprudence interprets Ar-Italian civil justice system, see ElisabettaSilvestri, “The Never-Ending Reforms (Locascio, ed., 2003). ticles 116 c.p.c. to provide that the con- 11 “Definition of the proceedings duct of the parties can be the “only andof Italian Civil Justice,” which can bedownloaded from http://unipv.acade- related to company law and financial sufficient source of proof and persuasionmia.edu/ElisabettaSilvestri/Papers/8252 services as well as banking and credit of the Judge” and not just a factor in68/The_Never-Ending_Reforms_of_ transactions.” considering the proof adduced at trial. 12 See Quarto Rapporto sulla diffusione See Decisions of the Court of CassationItalian_Civil_Justice. 3 Although Italian legislation and delle ADR in Italia nel 2009 (Fourth (Cass.) No. 12145 (Aug. 10, 2002); No.scholarly articles tend to use the terms Report on ADR Diffusion in Italy 2009) 10568 (July 19, 2002); No. 10268 (July“mediation” and “conciliation” inter- (ISDACI 2011) (the Fourth Report). 16, 2002); and more recently, No. 1658 13 For a discussion on the CONSOB (Jan. 27, 2005). However, the conduct inchangeably, in proper Italian parlancemediation refers to the process, concilia- Chamber of conciliation and arbitration question must take place during the trialtion to a positive result in mediation. see, e.g., Nascosi, “La nuova camera di itself. Conduct in pre-trial proceedings(See definitions provided by Decree No. conciliazione ed arbitrato presso la can have no bearing on matters of proof.28, dated March 4, 2010). The term CONSOB (The new CONSOB cham- Cass. Decision No. 8596 (June 22, 2001).“mediation” is used in this article to ber of conciliation and arbitration),” in Thus, a failure to appear and defend inrefer both to mediation and conciliation. Le Nuove Leggi Civili Commentate (2009), proceedings preceding the trial cannot 4 See Legge Pinto: “Otto condanne at 963 et seq. by itself have probative value in support 14 See Fourth Report, supra at n. 11.3 of a plaintiff’s claims. Cass. No. 10554per l’Italia” (Pinto Law: Eight Judg - 15 For a synthesis of the EU Council’s (Dec. 9, 2004).ments against Italy), Il Sole 24 Ore, (May final position, adopted on Feb. 28, 2008, 23 As a result of amendments intro-3, 2010). 5 See Corte Suprema di Cassazione, see L’Observateur de Bruxelles No. 72– duced by Law. No. 183, dated Nov. 4,Relazione sull’Anno Giudiziario 2010 April 2008, 30 ss. (French text). 2010, an attempt at mediation pursuant 16 There was no shortage of legal to Article 410 c.p.c. no longer constitutes(Italian Supreme Court Report onJudicial Year 2010). opinions expressed at the time that the a precondition to pursuing a labor/em- 6 Italy has not wanted for debate over 2008 Directive delegated to the Italian ployment claim in court. legislature the authority to provide for 24 See Decision No. 340, Corte Costi-whether or how to use mediation. Somescholars have objected to mediation on mandatory mediation as a condition to tuzionale (Oct. 12, 2007), in Le Societágrounds of procedural fairness in the going forward with litigation of certain 495 (2008) (with comments by Elisa -neutral selection process, the question- categories of cases in Italian courts. See, betta Senini). e.g., Caratta, in Mandrioli & Caratta, 25 It should be noted, however, that inable impartiality of neutrals, and the riskthat mediation, especially mandatory Come cambia il processo civile 217 (How 2000, the Constitutional Court rejected amediation, could increase rather than the civil case is changing) (2009, spec.). challenge based on exceeding legislative 17 For a comprehensive treatise on authority in a case involving obligatoryreduce litigation cost and delay. Somescholars have countered that mediation the subject, see T. Galletto, Il Modello mediation of private employment rela-should not be viewed as merely a correc- Italiano di Conciliazione Stragiudiziale in tionships. Corte Costituzionale. Decisiontive measure to address litigation delay Materia Civile (The Italian Model for No. 276 (2000). 26but as a method of resolving claims that Extra-Judicial Conciliation in Civil Decision No. 173, Corte Costitu-is qualitatively better than litigation. See Cases) (A. Giuffré ed., 2010). zionale (May 13, 2010), in Foro It. 1980 18Buonfrate–Leogrande, “La giustizia Id. at 44 et seq. (2010). 19 27alternativa in Italia tra ADR e concili- See Porrecca, supra n. 7. European Court of Justice, C317/ 20azione (Alternative justice in Italy, ADR The 2008 Directive is consistent, 08 (March 18, 2010,) in Foro It. IV, 361and conciliation),” Riv. Arbitrato, 375 et in this sense, with the April 4, 2001, (2010) (in Italian, annotated by Armoneseq. (1999). Commission Recommendation (2001/ & Porreca). 28 7 See P. Porreca, “La mediazione e il 310/CE) that the parties to a mediation Reg. No. 180, art. 18(f). 29processo civile: complementarietà e be informed of their right to decline to Decree No. 28/2010, art. 12,1. 30coordinamento” (Mediation and Civil participate in an extra-judicial attempt Practicing lawyers and law stu-Justice: Complementarity and Coord- to resolve a dispute, and that the parties dents in Italy have ready access to schol-ination), Società 631 et seq. (2010). be given the right to be represented or arly articles explaining the varied poten- 8 For a thorough review of the relat- assisted in all phases of the alternative tial roles of attorneys in the mediationed legislative initiatives, see Giovanucci– procedure. process. See, e.g., Uzqueda, “Il ruolo 21Orlandi, “La normative italiana in tema Even the relatively recent legisla- degli avvocati nella conciliazione” (Thedi conciliazione ‘convenzionale’” (The tion on mediation and arbitration of role of attorneys in conciliation), in LaItalian regulatory scheme related to customer disputes in the financial servic- risoluzione stragiudiziale delle controversie e“conventional” conciliation),” Arbitrato, es industry and related regulations pre- il ruolo dell’avvocatura (Extra-judicial dis-ADR, conciliazione, 1218 et seq. (M. cluded evaluative mediation except with pute resolution and the role of advoca-Rubino-Sammartano ed., 2009). the consent of the parties. Legislative cy), 227 et seq. (Alpa & Danovi, eds., 9 Italian Code of Civil Procedure, art. Decree No. 179 (Oct. 8, 2007); CON- 2004). 31322. SOB Decision 16763 (Dec. 29, 2008). See, e.g., Uzqueda, n. 28, supra. 32 10 See G. Alpa, “Riti alternativi e tec- See, e.g., Luiso, “La delega in materia di This case originated as an adminis-niche di risoluzione stragiudiziale delle mediazione e conciliazione” (Imple - trative challenge by the Organization ofcontroversie (Alternative procedures and menting legislation in the field of medi- Italian Attorneys (OUA) to regulationtechniques for the extra-judicial resolu- ation and conciliation), in Le modifiche al 180/2010.DISPUTE RESOLUTION JOURNAL 9

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