Last Friday the Italian parliament enacted a new decree concerning mediation. Giovanni Matteucci knows the background and gives an overview about the new developments.
Interview by André Niedostadek
Giovanni, last year the Italian Constitutional Court ruled that the mandatory mediation in certain cases does not comply with the constitution. A few weeks ago the compulsory mediation was reintroduced by the Italian Council of Ministers. This seems a bit confusing. Can you clarify the background?
First of all there seems to be a widespread misinterpretation. In fact the Italian Constitutional Court did not rule that the mandatory mediation does not comply with the Constitution, but that there was a lack of power by the government to rule about mandatory mediation as it has been in 2010. Now the Italian parliament, holder of the legislative power, has introduced again the mandatory mediation in many civil matters.
What experiences have been made with mandatory mediation after it was first introduced in March 2011 and abolished in October 2012?
First and foremost the experiences have revealed four major problems. On the one hand there is a strong aversion by representative bodies of the Italian advocacy in respect to mediation because of the “culture” and because they are worried about declining revenues. Besides electoral strategies inside their professional orders play a role. Secondly there is also a benign neglect and even sometimes a silent strong dislike by judges. Thirdly the economic depression, the lack of jobs and low admittance rules have motivated many people to become mediators without having a sufficient background to provide quality service. And finally the almost complete ignorance of mediation by potential users like firms, consumers and others. Just to give one example: Between March 2011 and October 2012, when mandatory mediation was existent, according to statistics by The Ministry of Justice there have been 215.689 procedures in Italy, with an average successful rate of 12%. But curiously it was declining from 15% on March 2011 to 8% on October 2012. That is far too little.
How is mandatory mediation considered by mediators?
For most of them, it’s just a way to raise money. Nevertheless there are no figures about mediators’ revenues so far.
A new decree concerning mediation was enacted into law last Friday. Can you give us an overview about the key aspects?
Before entering a case for trial it is now compulsory to attend a mediation process when there are complaints in matter of certain topics: Condominium, real rights, distribution of the estate, hereditary succession, heritage contracts related to family business, house lease, loans, business lease, damages from medical activity, libel through press or any other advertising and last but not least insurance, banking and financial contracts.
The litigant parties must be assisted by a lawyer. The mediation process starts with an information meeting, free of charge, where the litigants can weigh if there are conditions for settling or not. This of course raises new questions for the practice of mediation: Who will attend this information meeting, just the litigants and their lawyers or only the lawyers? In the latter case, there will be extremely small room for mediation.
The neutral can make a solution proposal, also in absence of the parties. The mediation process must end within three months, but litigant parties may ask to go beyond this time limit.
There are also some economic connections between an unsuccessful mediation process and the subsequent jury trial. When for example party A makes a final proposal in the mediation process which is not accepted by party B and if the judge’s solution will be the same to the refused proposal, party B will be sentenced to pay all the fees. There are also fiscal facilities for mediation because mediation fees can be deducted from income tax. Mediation will be compulsory the matters mentioned above for the next four years. The Ministry of Justice will check the results in the second year.
What will be from your point of view the major challenges for mediation in Italy in the near future?
From my point of view there are three major challenges: First of all an adequate professionalism by mediators has to be established and which also include higher qualification requirements. Furthermore it is necessary that the Italian society gets a widespread knowledge of the spirit and the usefulness of mediation. And of course a strong increase of voluntary mediation would certainly be helpful.
Giovanni, thanks for this interview!
Giovanni Matteucci graduated in Law and in Economics & Commerce. He attended the Master in “Alternative Dispute Resolution techniques” and “Bankruptcy law course” at the University of Siena. He was a bank officer before becoming a civil mediator accredited by the Ministry of Justice in 2007 and a trainer in 2011. He created and maintains the website www.adrmaremma.it and offers instructional videos on mediation on www.youtube.com/adrmaremma. Contact: firstname.lastname@example.org.