Civil mediation, how to kick-start it; the Italian experience
Training, compulsory, tax relieves, control

Civil and commercial mediation has been compulsory in Italy since 2011. More precisely:
complusory since |
March 21, 2011 |
untill December 12, 2012 |
|
voluntary since |
December 13, 2012 |
untill September 19, 2013 |
|
compulsory since |
September 20, 2013 |
M e d i a t i o n |
Civil |
proceedings |
||||||
Proceedings |
Agreements |
Agreements |
Registered |
Pending |
|
|||
success rate |
|
|||||||
2011 ° |
60,810 |
9,912 |
16% |
4,409,000 |
5,566,000 |
|
||
2012 |
154,879 |
16,727 |
11% |
4,267,000 |
5,081,000 |
|
||
2013 |
41,604 |
5,408 |
13% |
4,389,000 |
5,155,000 |
|
||
2014 |
179,587 |
16,162 |
9% |
4,009,000 |
4,359,000 |
|
||
2015 |
196,247 |
19,625 |
10% |
3,334,000 |
3,945,000 |
|
||
2016 |
183,977 |
20,237 |
11% |
3,472,000 |
3,803,000 |
|
||
|
||||||||
Cases discussed in Tribunals |
|
|||||||
From 2013 to 2015 |
All civil proceedings |
Proceedings related |
|
|||||
to civil mediation |
|
|||||||
|
||||||||
|
-8% |
-16% |
|
|||||
|
||||||||
Length of proceedings (days) |
|
|||||||
|
||||||||
Civil Cases in Courts |
Mediations with agreement |
|
||||||
2012 |
n.a. |
65 |
|
|||||
2013 |
844 |
82 |
|
|||||
2014 |
984 |
83 |
|
|||||
2015 |
902 |
103 |
|
|||||
2016 |
882 |
115 |
|
|||||
Mediation (and ADR) are not extensively used in many Countries. If you want to kick-start them, it is necessary to have clear goals to be reached, a very good training, a strong attention to the “stakeholders” (people, lawyers, judges), their attitudes and interests, and to control what is going on. Starting with the knowledge of the historical framework.
Mediation belongs to the Italian cultural and juridical 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). 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.
Since the 30’s of the twentieth century, in Italy, mediation gradually lost its importance and it was no longer taught in universities for over seventy years; it was (and still is) part of the Italian legal tradition, but it was forgotten, by the potential users (people) and by the professionals (lawyers and judges).
In 1993 the Law 580 ruled : each Italian Chamber of Commerce had to set up a conciliation (and arbitration) chamber. At a very slow pace ADRs started their way in contemporary Italy. The Legislative Decree no. 5/2003 (in force since 2005) ruled voluntary mediation in corporate, financial and banking controversies. Mediation bodies were ruled; lawyers and no lawyers could be mediators. Specific training requirements, especially on communication, were very modest. Nobody (rectius, no lawyer) used it, and when I asked why, lawyers replied: “Because it was not compulsory”.
There were a high number of litigation cases, long lasting litigation cases, a huge numbers of lawyers (with decreasing revenues), a “shrinking” in the litigation market, a tremendous number of pending civil litigation cases in the overall judicial system (5,700,000 in 2009).
In 2010 the compulsory civil and commercial mediation was ruled (starting on March 2011) in many civil matters [1] , revoked in October 2012 and reintroduced in September 2013. It had to face a furious opposition by lawyers (a matter of culture and revenues – ADR, here, doesn’t mean Alternative Dispute Resolutions, rather Alarming Drops in Revenues) and -until 2013- a benign neglect by judges (a matter of culture). Mediation bodies were regulated in detail; 50 hours training (too few) were established, with specific attention to communication; graduates in any subject could become mediators (non-graduates only on matters related to their activities). In Italy civil and commercial mediation took-off : from March 21 to December 31, 2011 : registered proceedings 60.810, all parties present in 31% of proceedings, agreements 9.912 (with a success rate of 16%), two to three months required to reach the deal.
Over time, the number of proceedings increased as well as the percentage of proceedings where all parties were present. But the success rate of the latter started to decline, continuously, constantly, and stubbornly, until the end of 2012. Why ?
The mediator’s fee doubles when an agreement is reached. This acts as an incentive to the professional, who will try to ensure that the proceeding results in a positive solution; however, in some (if not many) cases, the parties left the mediation just before its final session, where the deal was to be signed. Moreover, it is my opinion that, at the beginning of 2011, mediators were professionals with expertise in the subject, with many years of training behind them, and able to understand the causes of conflict and how to manage them. Later on (also because of the economic crisis) many of those, who jumped on the bandwagon had a pour (50 hours) training; the consequences were deterioration in the quality of the mediation process management and worse results.
On December 12th, 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. The number of mediation proceedings dropped, voluntary mediation survived, with a much higher success rate than that of compulsory one.
Under the pressure from the European Union, the so called “To Do” Law, Legislative Decree no. 69/2013, reintroduced mediation as a mandatory first step before going to court, starting on September 20th, 2013.
But the heavy pressure exerted by lawyers on the members of Parliament led to significant changes from the previous law. Among others :
- lawyers mediators “ope legis”
- compulsory lawyers’ assistance (presence) for the parties;
- the first “informative” meeting free of charge (except for a 48,80 euro fee, 97,60 if mediation value is higher than 250,000 euro – the mediator works for free, the lawyer hired by the party is paid); the invited party, according to lawyers’ misinterpretation, can abstain from the proceeding by not attending the mediation meeting (with the plaintiff and the mediator) or, attend the first informative meeting, can “ OPT-OUT ” from the process .
Legislative Decree no. 69/2013, also, established the possibility for judges
- to issue a solution proposal based on equity (ex art. 185-bis civil procedure code) in all subjects related to alienable civil rights, which the parties were free to accept or refuse (not binding arbitration);
- to order litigants to undergo mediation in all subjects related to alienable civil rights (delegated mediation). In many cases the judges blended these two options: they made a solution proposal and, if the proposal was rejected, they ordered mandatory mediation (arbitration – then – mediation).
An increasing number of judges started using these opportunities, and with very interesting results: in most cases lawyers, though reluctant to do so, joined the mediation procedure and litigants reached an agreement. Last but not least, judges have opposed the practice of those lawyers who attended the first informative meeting, without the party, only to declare that they were not interested in proceeding with the mediation. Judges are condemning this behavior, remarking that: “lawyers are mediators ‘ope legis’, therefore ‘ope legis’ they know mediation, the necessity of the parties’ presence and of a real interaction among them”.
Judge Massimo Moriconi, Civil Court of Rome, acted as a pioneer. Thanks to an extensive use of invitation to mediation in the 2012 – 2013 period, he achieved a reduction of at least 10% of the disputes entrusted to him. From September 23rd, 2013 to October 10th, 2014 he presided over about 700 cases; according to him, ADR methods could be used in almost 200 cases of those cases; in 121 cases he turned to 40 non-binding arbitrations, 35 delegated mediations and 46 non-binding arbitrations and delegated mediations (arb-then-med); in 58% of the cases the parties reached an agreement. 8% reduction of the diputes entrusted to him [2] .
New rules in 2014 / 15 :
- cases pending before the court, upon the parties’ agreement, can be transferred in arbitration;
- assisted negotiation by lawyers : for disputes relating to compensation for damages caused by cars and boats and for all claims for payments up to 50,000.00 euro (in matters not subject to mandatory mediation); for the separation between husband and wife (provided there are no underage children, or anyway dependent from their parents), the litigants, assisted by their lawyers, will be able to reach an agreement, that is enforceable; as mediation, this procedure will be a pre-condition to assessment in court [3] ;
- who loses in court will refund the expenses of the process;
- a high statutory rate of interest for late payment will be provided, to an extent at least equal to the market price; therefore the debtor, who forces the creditor by applying to the court to get the amount back, will not make money out of the lengthy procedures.
50 hours training have proved insufficient, at least 200 hours would have been necessary, and not only law experts but also communication experts, psychologists, bankers, etc. should have been involved; ADRs are a mixture of very different skills.
It is also necessary that lawyers understand that they can make a profit out of mediation, especially in times of economic downturn, when companies need to solve their problems in order to get money. And it is also necessary for the evaluation of judges, for their career advancement, to be based not only on the number of orders issued, but also on the total number of disputes resolved. Tax benefits have been formally introduced but are not operational. National statistics and inspections carried out by the Ministry of Justice allow a check on the regularity of procedures.
When all parties meet with a mediator and decide to go further than the first infomation meeting, the overall rate of success has been 11% in 2016; too low, even if a bit higher than in previous years. Moreover in Italy the conflicts subjected to mandatory mediation are only the 8% of all the conflicts filed in the Italian Courts; the filing of all civil cases increased by 10% between October 2012 and September 2013 (when mandatory mediation was revoked) and decreased by 15% later on (when mandatory mediation was reintroduced).
And the results are coming:
- 2016 scored the highest number of mediation agreements ever reached;
- the results achieved by mediation (in 2016, 183,977 proceedings, 20,237 agreements) are far superior to those obtained with the assisted negotiation (43,000, 4,132);
- the Italian competition on mediation (Milan, Chamber of Commerce) in 2012 was attended by 4 universities; in February 2017, there were 24 universities, 120 students all highly trained.
Knowledge is the basis for any serious activity.
(Altalex, 23 October July 2017. Article by Giovanni Matteucci)
Table 1 CIVIL AND COMMERCIAL MEDIATION IN ITALY
|
|
|||||||||||||
Incoming mediations proceedings |
The invited party present |
Agreement |
Agreement |
Agreement |
Agreement |
|
||||||||
success rate when parties go further [1] |
success rate when parties do NOT go further [2] |
overall success rate [3] |
absolute values [4] |
|
||||||||||
A |
B |
C |
D |
B x C = E |
A x E = F |
|
||||||||
B x D = E |
|
|||||||||||||
2011 ° |
60,810 |
31% |
53% |
[1] |
16% |
9,730 |
|
|||||||
2012 |
154,879 |
27% |
41% |
[1] |
11% |
17,037 |
|
|||||||
2013 |
41,604 |
32% |
49% |
[1] |
16% |
6,657 |
|
|||||||
2014 |
179,587 |
40% |
47% |
23% |
9% |
16,162 |
|
|||||||
2015 |
196,247 |
45% |
43% |
22% |
10% |
19,625 |
|
|||||||
2016 |
183,977 |
47% |
43% |
24% |
11% |
20,237 |
|
|||||||
|
||||||||||||||
° 21.3 / 31.12.2011 |
|
|||||||||||||
[1] In 2011, 2012 and untill September 19, 2013 the first infomation meeting was not required |
|
|||||||||||||
[2] Success rate when parties go further than the first information meeting |
|
|||||||||||||
[3] Success rate when parties do NOT go further the first infomation meeting |
|
|||||||||||||
[4] Overall success rata, including mediations in which invited party is not present and those |
|
|||||||||||||
in which parties do NOT go further the first information meeting. |
|
|||||||||||||
Initial pending proceedings |
Incoming proceedings |
Resolved proceedings |
Final pending proceedings |
Agreements overall success rate |
Agreements absolute values |
||||||||
G |
H |
I |
L |
E |
I x E = M |
||||||||
2011 ° |
742 |
60.810 |
40.162 |
21.390 |
16% |
6.425 |
|||||||
2012 |
21.390 |
154.879 |
152.631 |
23.638 |
11% |
16.789 |
|||||||
2013 |
23.638 |
41.604 |
24.019 |
41.222 |
16% |
3.843 |
|||||||
2014 |
41.223 |
179.587 |
156.317 |
64.493 |
9% |
14.068 |
|||||||
2015 |
64.493 |
196.247 |
185.745 |
74.995 |
10% |
18.574 |
|||||||
2016 |
74.995 |
183.977 |
173.474 |
85.499 |
11% |
19.082 |
|||||||
|
° 21.3 / 31.12.2011 |
|
|||||||||||
Table 2 Comparison between cases discussed in the Tribunals
and those discussed in mediation
From 2013 to 2015 All civil proceedings Proceeding relating
to civil mediation
- 8 % - 16 %
Matters relating to civil mediation
Civil mediation has been
- compulsory since March 21, 2011 untill December 12, 2012
- voluntary since December 13, 2012 untill September 19, 2013
- compulsory since September 20,2013
Proceedings Incoming
filed in the courts mediations
2011 209,572 60,810
2012 209,024 - 0,2% 154,879 + 155 %
2013 228,870 +10 % 41,604 - 73 %
2014 195,273 - 15 % 179,587 + 332 %
2015 191,587 - 2 % 196,247 + 9 %
Table 3 Lawyer’s assistance in voluntary mediation
Inviting party to mediation Present invited party
legally NOT legally legally NOT legally
assisted assisted
A B C D
21.3.2011 / 31.12.2012 81% 19% 81% 19%
1.1 / 30.9.2013 72% 28% 65% 34%
2014 Year 63% 37% 73% 27%
2015 Year 52% 48% 83% 17%
2016 Year n.a. n.a. 84% 16%
Untill September 19th, 2013 lawyer’s assistance in mediation was not compulsory.
Table 4 Categories of mediation
(resolved cases)
Mandatory Voluntary Delegated Compulsory
by law by judge by contract
A B C D
21.3 / 31.12.2011 78% 20% 2% 0.5%
2012 85% 12% 3% 0.3%
2013 56% 42% 2% 1.5%
2014 80% 12% 8% 0.6%
2015 82% 8% 10% 0.4%
2016 80% 9% 11% 0.5%
Table 5 Outcome by type of referral / proceeding
Settled proceedings Success rate Success rate
according to type when parties when parties
of mediation go further do NOT go further
(resolved cases) [2] [3]
A B C
21.03.2011 / 31.12.2012
Mandatory by law 81% 43% [1]
Voluntary 16% 62% [1]
Ordered by judge 3% 29% [1]
2013
Mandatory by law 56% 30% [1]
Voluntary 42% 64% [1]
Ordered by judge 2% 22% [1]
2014
Mandatory by law 80% 45% n.a.
Voluntary 12% 67% n.a.
Ordered by judge 8% 33% n.a.
2015
Mandatory by law 82% 43% 21%
Voluntary 8% 62% 41%
Ordered by judge 10% 31% 14%
2016
Mandatory by law 80% 44% 23%
Voluntary 9% 61% 39%
Ordered by judge 11% 32% 15%
[1] In 2011, 2012 and untill September 19, 2013, the first information meeting was not requested.
[2] Success rate when parties go further than the information meeting.
[3] Success rate when parties do NOT go further the first information meeting.
Table 6 Mediation proceedings according to the type of mediation bodies |
|||||
Mediation bodies |
Settled proceedings |
Success rate when parties go further [2] |
Success rate when parties do NOT go further [3] |
||
A |
B |
C |
D |
||
21.3.2011 / 31.12.2012 |
|||||
Chambers of Commerce |
87 |
16% |
49% ° |
[1] |
|
Private organizations |
686 |
56% |
46% ° |
[1] |
|
Professional not lawyers |
80 |
0.6% |
36% ° |
[1] |
|
Bar associations |
115 |
27% |
34% ° |
[1] |
|
968 |
100% |
44% ° |
[1] |
||
2013 |
|||||
Chambers of Commerce |
87 |
16% |
40% ° |
[1] |
|
Private organizations |
699 |
54% |
49% ° |
[1] |
|
Professional not lawyers |
85 |
1% |
47% ° |
[1] |
|
Bar associations |
115 |
29% |
30% ° |
[1] |
|
986 |
100% |
42% ° |
[1] |
||
2014 |
|||||
Chambers of Commerce |
87 |
12% |
54% |
23% |
|
Private organizations |
644 |
54% |
51% |
27% |
|
Professional not lawyers |
92 |
1% |
62% |
38% |
|
Bar associations |
115 |
33 |
38% |
21% |
|
938 |
100% |
47% |
24% |
||
2015 |
|||||
Chambers of Commerce |
88 |
11% |
48% |
22% |
|
Private organizations |
611 |
53% |
47% |
26% |
|
Professional not lawyers |
88 |
1% |
47% |
33% |
|
Bar associations |
107 |
33% |
37% |
19% |
|
894 |
100% |
43% |
23% |
||
2016 |
|||||
Chambers of Commerce |
87 |
11% |
47% |
23% |
|
Private organizations |
516 |
52% |
48% |
27% |
|
Professional not lawyers |
70 |
1% |
51% |
35% |
|
Bar associations |
105 |
36% |
37% |
21% |
|
778 |
100% |
44% |
24% |
||
° Success rate (number of agreements / total defined proceedings) when the invited party is |
|||||
Present |
|||||
[1] In 2011, 2012 and untill September 19, 2013 the first information meeting was not requested. |
|||||
[2] Success rates when parties go further the first information meeting. |
|||||
[3] Success rate when parties do NOT go further the first information meeting. |
Table 7 Value of mediation disputes (euros)
2012 n.a. n.a.
2013 156.464 10.412
2014 110.556 20.000
2015 137.862 19.929
2016 139.544 17.000
Table 8 Length of proceedings (days)
Civil cases Mediation proceedings
in Courts cases when agreement is reached
2012 n.a. 65
2013 844 82
2014 984 83
2015 921 103
2016 882 115
Tabella 9
Incoming mediation proceedings by subject - 2016 |
||||||||
|
||||||||
Incoming proceedings |
The invited party present |
Agreement success rate when parties go further |
Agreement overall success rate |
Value median |
|
|||
% |
% |
% |
% |
euro |
|
|||
A |
B |
C |
B x C = D |
E |
|
|||
|
||||||||
Bank contracts |
20 |
46 |
7 |
3 |
40.000 |
|
||
Property |
14 |
55 |
36 |
20 |
10.000 |
|
||
Other proceedings (non mandatory mediat.) |
12 |
43 |
36 |
16 |
11.640 |
|
||
Condominium |
12 |
53 |
26 |
14 |
5.000 |
|
||
Lease |
12 |
52 |
29 |
15 |
7.549 |
|
||
Medical malpractice |
7 |
38 |
10 |
4 |
37.500 |
|
||
Insurance contracts |
6 |
15 |
15 |
2 |
9.380 |
|
||
Partition |
5 |
59 |
29 |
17 |
70.000 |
|
||
Will and inheritance |
4 |
62 |
27 |
17 |
50.000 |
|
||
Financial contracts |
3 |
40 |
8 |
3 |
19.684 |
|
||
Gratuitous loans |
1 |
46 |
32 |
15 |
7.500 |
|
||
Business rents |
1 |
53 |
32 |
17 |
25.954 |
|
||
Libel |
1 |
38 |
16 |
6 |
37.500 |
|
||
Family agreements |
0,2 |
54 |
21 |
11 |
24.000 |
|
||
Statistics based on data by Italian Ministry of Justice
Giovanni Matteucci was born in Rome, Italy, in 1949. He graduated in Law and Economics & Commerce at "La Sapienza" University of Rome and earned a "Diploma in Economics" from the University of York (UK). He attended the postgraduate specialization courses in "Alternative Dispute Resolution techniques" and “Bankruptcy law” at the University of Siena.
He worked as a bank officer, specialized in assessing and managing risk, especially the uncertainly realized. He has been a civil mediator certified by the Ministry of Justice since 2006 and a trainer since 2011; he operates as a mediator at the Chamber of Commerce of Grosseto, Conciliatore BancarioFinanziario and ADRCenter, and as a trainer at Risorsa cittadino s.c.s e Arbimedia s.r.l. . He specializes in the use of mediation to prevent conflict in the event of corporate financial crisis. He trained in Online Dispute Resolution with Virtualmediationlab-Hawaii.
Since 2014, he is a European funding consultant.
He has published, in English
papers
“Mediation and over-indebtdeness in Italy” 30.8.2012
“Early disclosure of business crisis in Italy; the early warning indicator does exists, it does work, it is not used” 13.2.2017
http://e-archivo.uc3m.es/handle/10016/20429
“Italy Is Doing It – Should We Be? - Civil and Commercial Mediation in Italy “
in “Contemporary tendencies in mediation”, pag. 205, Dykinson 2015, Universidad Carlos III de Madrid
“Mandatory mediation, the Italian experience” (Vol. XVI 2015, pag. 189)
in Revista Eletronica de Direito Processual REDP; Periodico da Pòs-Graduacao Stricto Sensu em Direito Processual da UERJ Universidade do Estato do Rio de Janeiro
“Mediation in Italy, July 2014; new rules being approved” 7.7.2014
“ADR and the judiciary in Italy” 18.10.2014
“The civil mediator in Italy : an auxiliary of the judge ?!?!” 3.7.2015
video
“Mandatory mediation, the Italian experience” 23.6.2015
Contacts giovannimatteucci@alice.it and info@adrmaremma.it .
Skype ID adrmaremma
Linkedin profile http://www.linkedin.com/pub/giovanni-matteucci/26/522/583
[1] Rights in rem, property; division of assets, partition; wills and inheritance; family covenants and agreements; lease; gratuitous loans; business rents; civil liability for medical malpractice; civil liability for defamation in teh press or other media; insurance, banking and financial contracts; condominium. Interim and preventive procedures (injunction proceedings, notice to quit, possessory proceedings, civil action inside the criminal proceedings, etc.) were exempted from the mandatory attempt at mediation. The conflicts subjected to mandatory mediation are the 8% of all the conflicts filed in Italian courts.
[2] http://www.mondoadr.it/cms/articoli/resoconto-del-convegno-il-ruolo-del-giudice-nella-mediazione.html http://www.adrmaremma.it/news199.pdf
[3] Legislative Decree 132, September 12, 2014 art. 1 and art. 2, converted with amendments by Law 162/ 2014, ruled the transfer in arbitration and the assisted negotiation, both institute strongly supported by lawyers. Results in 2016: proceedings 43.000; agreements 4.132 (separations and divorces 3.197). With respect to the mediation a much wider field of application, but inferior results. No news about transfer in arbitration.
[5] The median is the middle number of the group when they are ranked in order.