The implementation of the EU Mediation Directive into Italian mediation practice
Author: Claudia Covata
The European Union promoted the importance of ADR practice through Directive 2008/52/EC which imposed on Member States the introduction of mediation procedures for cross-border disputes. The Directive sets a milestone in promoting the harmonization process for all civil and commercial disputes concerning available rights. The main goal of the EU Directive is providing certainty to parties regarding enforcement issues; it invites Member States to provide disputants with a guarantee of service, including a conciliator’s ethics code, training requirements, and the possibility for court-ordered conciliation. The Directive covers cross-border disputes – those disputes in which at least one of the parties is domiciled or resident in a Member State different from that of any other party. However, the Directive leaves to each national State the decision to implement the Directive’s rules also in internal disputes. In order to implement the Directive, the italian legislator enacted Legislative Decree no. 28/2010 making full mediation a condition precedent for trial in certain subject matters. So Italian legislator has chosen to extend the rules and priciples laid down by the Directive to internal mediation law and has forseen mandatory mediation for disputes in a large number of categories.
In October 2012 the Italian Constitutional Court quashed compulsory attempt of mediation inserted in Legislative Decree no. 28/2010, finding that by enacting the law, the Government had exceeded the scope of both the Mediation Directive and Law 69/2009, which empowered the Italian Government to adopt a legislative decree introducing civil and commercial mediation procedures.
In other words, Constitutional Court did not answer to sensitive issues raised during the process, namely whether mandatory mediation violates the fundamental right of individuals to judicial protection. This last issue was also submitted to the Court of Justice of the European Union, that nevetheless dismissed the case without a decision about its merit, arguing that the same issue was overcome by the fact that the Italian legislation had lost effectiveness, as a result of the Costitutional Court judgment.
In the meanwhile, with regards to European Council organization, the Commissioner for Human Rights has even approved the introduction of mandatory mediation, as a remedy to the tragic lenght of Italian court proceedings.
On 20 September 2013, the so-called “mandatory mediation” (re)entered into force in the Italian legal system. In fact, the Italian Government, following the above-mentioned declared unconstitutionality of Legislative Decree no. 28/2010 in the section which introduced the mandatory attempt of mediation (Constitutional Court decision no. 272/2012), reintroduced such procedures, even though partially amended, through the Law Decree no. 69/2013 (“Decree 69/13”) on “Urgent dispositions to relaunch the economy”. The Law Decree no. 69/2013 reintroduced the mediation procedures for a limited period of four years. Finally the Law Decree 24 April 2017, n. 50, providing “urgent provisions on financial matters, initiatives in favor of local authorities, further measures for areas affected by earthquakes and measures for development”, introduced stable mediation without any limitation of time. The European Union pressed strongly for Italy to develop the use of ADR and the mediation in particular.
The solution was a compromise: now in Italy it is no longer obligatory to conduct a mediation before filing a case in a court, but only to have an informative meeting with a mediator, who is required to provide such activity free of charge. During the required initial mediation session “the mediator informs parties about mediation purpose and functioning. In the same occasion, the mediator invites parties and their lawyers to evaluate and decide about the possibility to start the mediation” (art.8, c.1). If litigants fail to agree to begin it, the procedure ends and there are no more obstacles to file the case to the competent court. This rule is actually the result of lobbying tampers of the legal profession, who tried in every way to boycott the re-introduction of mandatory mediation.
The law was enacted with the goal to ease the overwhelming caseload in the Italian courts and also to prevent additional delays in Italian judicial proceedings, no longer tolerable.
This time there was another notable change: Italy removed the obligation to go through and pay for a full mediation process instead only requiring participation in an initial mediation session in certain categories of case. After almost four years, both the statistics and the acceptance by all the major stakeholders (judges, lawyers, mediators, representatives of Ministry of Justice) has proven, that the Required Initial Mediation Session model combines the advantages of both the mandatory and voluntary models while minimising the burdens by ensuring the following three key elements:
- the effective beginning of a mediation procedure – by requiring an initial mediation session with a mediator, at a very low cost, with possible sanctions in the subsequent court proceedings if a party does not attend this initial session in good faith;
- the quality of the mediation procedures – by having the initial mediation session administered by a professional mediation service provider and mediator;
- the possibility of easily declining to proceed with the mediation process at the end of the initial session without any subsequent sanctions or other negative consequences at trial.
About the author:
Lawyer and mediator. Accredited trainer at the Ministry of Justice for the training of mediators in civil matters and in negotiation and mediation techniques.