“Mediators become only spectators …” – Five Questions to … Carmine Oricchio / Italy

Italy has adopted a new law concerning mediation in certain matters (see also the interview with Giovanni Matteucci). Carmine Oricchio expresses a mediators’ point of view.

Interview by André Niedostadek

Carmine, to start with a general question: how do you consider the situation of mediation in Italy?

Mediation, as a structured process conducted by any impartial third person to assist two or more parties to reach amicably an agreement on the settlement of their disputes, is poorly known by Italian people. We can say the same about its advantages, first of all, to preserve relations because the solution is not imposed but accepted voluntarily. In a country, where until 2010 in fact adversarial system has been the only system to resolve civil and commercial disputes, today a lot of people know about mediation nothing else that for certain disputes the parties are required to engage in mediation as a precondition to accessing the courts.

In Italy mandatory mediation on civil and commercial disputes concerning “disposable rights” was introduced with Legislative Decree No. 28/2010. It does not cover voluntary negotiations, negotiations with equal representation on both sides or complaint proceedings as provided in service contracts. In summary we can have three types of mediation: There is the optional mediation where parties attempt on a voluntary basis to reach an agreement on the settlement of their dispute, with the assistance of a mediator. There is the mediation upon request where: the judge, after evaluating the dispute, can refer parties to mediation. And finally there is the mandatory pre-trial mediation: If no settlement agreement has been reached, parties are required to engage in mediation, with the assistance compulsory required of lawyers, as a precondition to accessing the courts.

The settlement agreement reached through mediation binds the parties contractually, but only agreement reached with assistance of lawyers becomes a writ of execution for expropriation, specific execution and registration of judicial mortgage. All procedures aim to the satisfaction of the creditor’s interests, who has to obtain what is due to him in connection with the guarantees of the legal order within the limits set in the mediation’s agreement. In fact, without the assistance of lawyers, the agreement needs to be approved by a decree of the President of the Court.

I consider that currently only in respect to the “optional” mediation type the parties have a “real” active role in reaching an agreement.

Now a new decree concerning mandatory mediation in certain case is on its way. What is your opinion on this development from a mediator’s point of view?

“Dura lex sed lex!” The new decree reintroduces pre-trial mandatory mediation in certain cases, after the Italian Constitutional Court abolished a previous law in 2012. In fact, with the new decree, a mediation process requires an “information meeting” where litigants, assisted by lawyers, have to decide if to engage in mediation or not. If they do not engage in mediation they have access to the court directly. This meeting is free of charge if parties do not engage in mediation. There should be remuneration at the mediation provider organisation, but not the reimbursement of costs. It would be same for anyone who is granted legal aid, while for other cases there will be fixed minimum and maximum by a future Government decree. On these latter points there is still confusion and a heated debate. Meanwhile we are waiting for the Government’s decree!

The new decree erased from subject matters, disputes and compensation for damage due to car and boat accidents. So, mediation is compulsory in the following subject matters:

• Joint ownership;
• Property rights;
• Division of assets;
• Wills and probate;
• Family law;
• Leases;
• Loans;
• Leasing of companies;
• Medical and sanitary malpractices and defamation/libel
• Insurance, banking and financial contracts.

The new decree introduced a “criterion of territorial jurisdiction”. To start a mediation process, the parties have to select a mediation provider, “in the place of court with territorial jurisdiction for the dispute”, by mentioning the name of the mediation provider organisation, the names of parties, the matter and the aim of the mediation approach.

It is my opinion that the new decree just increases the power of judges and lawyers on mediation. With this framework the mandatory mediation field is completely ruled by judges and lawyers while the parties and mediators become only spectators. In short, the new decree does not create a real alternative system to the adversarial one, but an “ancillary” system to the traditional adversarial system. From a mediator’s point of view, I think that mandatory mediation, as renewed by decree, rather constrains mediation in Italy than to promote its development.

It has been criticised that in Italy, like in other countries too, mediators often don’t have sufficient background to provide quality service. Can you give us an overview how to become a mediator in Italy? Are there any qualification requirements to fulfil?

The mediator must have earned a degree for at least three years or must be registered in professional associations. Applicants must pass a final test after attending a professional course of at least fifty hours and a simulation-training of at least four hours. Courses are organised by training institutions registered with Italian Ministry of Justice.

Due to the innovation introduced by new decree, all lawyers will be mediators, too. It is important to say that the lawyers are required to inform their clients, in writing, about the mediation option, tax incentives, the types of disputes in which mediation is a precondition to accessing the courts. If a lawyer fails to give this information to the client, the power of attorney may be voided.

Regarding the quality of service, we must say that service of mediation in Italy is not handled by mediator, but it is handled by public agencies and private organisations registered with the Ministry of Justice. They appoint the mediator who will handle the case. In fact a mediator cannot be chosen by the parties, except in cases mentioned above.

In summary, the mediation procedure is ruled by a regulation of the providing organisation approved by Ministry of Justice. Each provider has its own regulation; in any case, the mediator is required to fulfil some duties and obligations. A mediator must be neutral, must not be paid by parties and must be impartial throughout the procedure.

So, in each file mediator must declare in writing that he is impartial. The mediator is required to inform the parties and mediation provider organisation about possible limits of impartiality throughout the process, then the mediation provider organisation may appoint another mediator. If requested by both parties the mediator is bound to make a proposal of agreement, in other cases the mediator can make a proposal if provided by regulations of the mediation provider and is required to answer immediately to any request from the mediation provider organisation.

In Italy, the parties and anyone else who works within the mediation provider organisation has a duty of confidentiality. Statements made or information acquired during the procedure may not be used in courts and shall not be considered as evidence. Statements made or information given by any party to the mediator may not be given to the adversary except in case of consensus. Mediators may not be called to testify in court. So as required by law, the mediation proceeding must be completed within three months from the submission of the request. Parties are free to accept or decline mediator’s proposal, of course. So, as you can see, quality service depends mostly by the provider organisation which chooses the mediator. It is my opinion that just the market will be able to select better provider organisations, therefore, better professional mediators.

How are mediators organized in Italy and do they speak with one voice?

In Italy there are a lot of association of mediators, but I can say they don’t speak with one voice and, on the other hand, it is very difficult because of the fact that in Italy a lot of mediators are not just “professional mediators” but they work currently in other fields too, like lawyers, accountants, engineers and so on. Their interests and points of view often are so far from interests and points of view of mediators working just as “professional mediators“.

Let us take a look into the future. What are the major challenges for mediation in Italy and how can mediators contribute to overcome these challenges?

To look into the future, we necessarily must look back into the past. Mandatory mediation as it has been in 2010 was adopted rather to decrease the huge amount of cases dormant in the courts than to introduce an alternative system to the adversarial system. In that framework mediation did have hard life, but it had started to produce some positive results, too. The new decree, which is innovating the Legislative Decree No. 28/2010, puts new obstacles on mandatory mediation’s way:

First of all there is the “information meeting” where litigants, assisted by lawyers, have to decide if to engage in mediation or not. Secondly the “test” on results of mandatory mediation checked by Ministry of Justice after two years.

If we add that Legislative Decree No. 28/2010, in fact, suggests only two methods of mediation, facilitative mediation and evaluative, we can see as mandatory mediation in Italy has an uncertain future and a very hard life, for sure.

On the other hand, I think that the future of mediation in Italy will be play on the field of “optional” mediation type. Mediation advantages are too evident to be ignored, for a long time, in a country where to obtain a judgement in a civil litigation you have to wait almost ten years and spend a lot of money.

It needs a promotion campaign developing these advantages: to meet concrete needs, to identify and articulate needs to each other, to preserve relations, to save time and money and so on. Often in Italy, we assist that the civil litigations turn into a public show, while it could be very appreciate that mediation is a private process and not subject to public knowledge and possible media attention. In brief, it is my opinion that “professional mediators” cannot change a law of course, but they can contribute to growth of “mediation culture” in Italy by their professional work. They must show to the Italians that mediation is a “concrete” tool able to turn “conflicts” into “shared solutions” and as it can be a “possible” alternative system to the litigation system. We must do it, we can do it.

Oricchio Dr. Carmine Oricchio attended his studies in Law at University of Naples “Federico II” and earned his law degree with a thesis in Business Administration. After working for Italian Police Department he actually works as Financial and Economic Assistant for Italian Ministry of Interior Affairs and as a consultant for small business in the field of tourism and agriculture. Since July 2013 he is a professional mediator for the International Chamber of Mediation and Arbitration “GiuriForm”.

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10 thoughts on ““Mediators become only spectators …” – Five Questions to … Carmine Oricchio / Italy

  1. Pingback: Mediator – Do you want to become a mediator? | Mediator – Do you want to become a mediator?

  2. I apologize for the delay with which I give answers to some questions from Linjedin members, but nevertheless it is a pleasure for me:

    QUESTION: With the new decree parties are required to go to an informational meeting. Some questions on that: How long is this meeting generally?

    ANSWER:
    The first information meeting, is a session of mediation in all respects. It takes place in the same way (for example: separate or joint session with the parties etc.). It is not indicated in the law a minimum or maximum time duration. It is my opinion that the duration can be determined by the parties. Below, I report article 1, paragraph 1, 2nd period of Legislative Decree no. 28 of Mars 2010 as amende by Law no. 98 of 09 August 2013, ruling the topic.

    “…(omissis) During the first meeting
    the mediator makes clear the parties about the role and modalities of
    the mediation process. The mediator, in the same first
    meeting invites the parties and their attorneys to comment on the
    opportunity to begin the process of mediation and, in positive case, proceeds with carrying out of mediation. (omissis)…” (Article 1, paragraph 1 Legislative Decree no. 28 of 4 Mars 2010 as amended by Law no. 98 of 09 August 2013)

  3. With the new decree parties are required to go to an informational meeting. Some questions on that:

    QUESTIONS: 1) Is that with the other party?

    2) Is that with the potential mediator?

    3) If so, can the parties go directly to mediation?

    ANSWER: In order to answer the three questions, I report article 8, paragraph 1, 1st period of Legislative Decree no. 28 of 4 Mars 2010 as amended by Law no. 98 of 09 August 2013:

    “When submitting the request for mediation, the manager of mediation provider’s organisation shall designate a mediator and sets the first meeting between the parties not later than thirty days after the deposit of the request. The application and the date of the first meeting are communicated to the other party by any appropriate means to ensure the reception, also by the requesting party.”

    Parties cannot go directly to mediation and in the cases of mandatory mediation they must be assisted by lawyers.

  4. We are very happy with the new law, in fact it is introducing Collaborative Law in Italy. Actually, it is true that the Mediator becomes now just a spectator of a process led by lawyers. But, to me there is not (there has never been) any other possible solution. Mediators will soon be very happy themselves. Regards Marco Calabrese, former president of Italian Institute of Collaborative Law.

    • Thank you for your comment, Marco. I don’t agree your opinion for sure, but I respect it. My best wishes to “Italian Institute of Collaborative Law”.

      • The IICL is Ok it has been in place for years: my best wishes to Mediators, that – without Collaborative Law- will probably not survive.
        United we stand, United we fall (Simul stabunt, Simul cadunt)
        Ciao

  5. I can’t agree with what I’ve just read, actually the clients – you know the people who pay for our services are at the centre of this new law. NOT lawyers, psychologists or mediators, Marco’s view as expressed here, does not reflect the attitude within the book we wrote together on Assisted Mediation published by Maggioli isbn 978 88 387 8500 9, which explains how we show mediators and lawyers working together to help disputing clients.

    Italy’s 2013 law no 98, shows there has to be a new way of professionals working together. For professionals to work together both disciplines must recognise that there are fundamental differences in the way they must work together to assist the needs of their clients.

    The mediators are responsible for managing the communication process and helping clients determine their own solution, while lawyers now need to act as legal ‘consultants’ to the process as it goes forward and ensure all agreements are freely entered into by the clients who come up with an ultimate solution. So clients can be ‘advised’ during the process, if it seems the client may agree to something that will be detrimental to them in the future. However, if the client hears that and on balance decides to make that agreement, providing the lawyer has provided information on how the law stands, ultimately it’s the client’s choice. Also, if a lawyer (or their client) in anyway derails the assisted mediation and the Court process is activated, it allows the presiding Judge to ask clients (only) for their perception of the process of the assisted mediation meetings. Enabling either client to voice any dissatisfaction about the activity (or not) of either lawyer or the other disputant. Again we are back to the autonomy of clients!

    Given this, how can anyone now believe that any professional is in a stronger position over any other professional? In my view both lawyers and mediators need to retrain together, so they know how their roles dove-tail into each others, to provide a seamless professional experience for the fee paying public. One brings one skill the other brings another. Without understanding and working in this fundamentally different way, the ability for clients to reach mutually satisfactory outcomes within this important new service, will be compromised. If it is compromised and assisted mediation breaks down in many instances, it will reflect that the professionals in the situation, were not truly focussing on working for the clients in their dispute resolution process.

    Really it comes down to choice. Are we going to embrace this law, by all changing our perspectives and positions and make a difference in the lives of our clients or are our professional fights of oneupmanship going to mean we will dare to take our clients money and provide them with no quality service at all?

    There will be many organisations with different training perspectives and we must encourage that – after all one size of of anything does not fit everyone! It is too simplistic to have lawyers training lawyers and mediators training mediators, we have moved on into an integrated process and any group who believes one discipline is more or less important, profoundly misses the point of the law that’s been created in Italy. So we must look to those who will develop the knowledge and skills needed to help all professionals together. I’ve already devised and am working with a University to train students in law and psychology to work in a way that reflects much of Italy’s new law, so it is possible to find ways to train together to break down barriers and build respect and understanding for each others work and better service the needs of the clients. I can’t see any other way to leave past squabbles behind and focus on building a sound future that makes a difference in peoples lives.

  6. Thank you, Adriana, for your comment. Shortly: I have released my interview on 26th of August 2013, quite 3 months before the “Circolare 27 novembre 2013” of Italian Ministry of Justice on some aspects of “new” mediation. After that “circolare” a lot of things are more clear.

  7. Thank you Carmine, if my post sounds quite strident it is because it feels essential to me that we all just get on and do whatever will help make this new law work. I’m sure you would agree that it would be unfair to the public if we didn’t create the necessary training and services in place and give this Italy’s best efforts to make this successful. To me this can only be driven by our mental attitude that will define how much we ‘own’ or engage with these new changes. I realise your original comment was based on what was known in the summer and agree things have become clearer and will continue to be clarified through the way the Courts direct cases.

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