Mediation in Italy: Exploring the Contradictions

European states have taken three primary approaches to the promotion of mediation, which for purposes of this article we will categorize as cultural, pragmatic, and legalistic. (For a more in‐depth comparative analysis of the mediation models adopted by different European states, see De Palo and Carmeli 2005.) Switzerland, uniquely, has undertaken a number of initiatives to promote a real culture of mediation. Closely following the U.S. educational model, several private and public institutions in Switzerland offer thorough training in mediation, and a number of programs specialize in training commercial mediators. In addition, many international organizations with long histories of dealing with mediation have offices there. As a result of all these factors, the mediation process is relatively well known throughout the country (Meier 2003).

In contrast, the Netherlands and Denmark exemplify what we characterize as a pragmatic approach to the promotion of mediation. Both countries have seen a steadily increasing number of cases fueled by the prominent success of long‐term pilot projects run alongside the court system with the blessing and keen interest of the judiciary system. In the Netherlands, in particular, educational efforts and a growing awareness of mediation have encouraged the establishment of mediation organizations (de Roo and Jagtenberg 2003).

The third approach to the promotion of mediation, which we characterize as legalistic, is the one taken by the majority of European states — a group that includes France, Germany, Spain, Greece, and Italy. In this group of states, Italy could be considered the “front‐runner.” In these countries, there have been institutional efforts to promote mediation, but the impacts have been far less significant than in the Netherlands and Denmark. A survey of European countries suggests that Italy has enacted the greatest amount of mediation‐related legislation. And yet, despite the high number of legislative acts over the last fifteen years, there is strong evidence that mediation has not to date taken hold in Italy in a serious and significant way. This evidence has recently been bolstered by the results of a 2004 Center for Public Resources (CPR) Institute for Dispute Resolution's European Committee survey.¹

In the first part of this article, we will provide a brief overview of the extensive legislative framework that now exists in Italy. In the second and third parts, we will examine the evidence that the mediation process has not truly been embraced in Italy in a manner that reflects the real efforts of the legislature and offer explanations for this apparent contradiction. We conclude by suggesting some general principles that can be extrapolated from the Italian experience.

Since the early 1990s, the Italian Parliament has introduced numerous mediation laws. Only a few of these proposals have become statutes to date, while the remainder retain the form of bills. The introduction of mediation‐related laws is a response to the disastrous situation of the Italian court system in which the average duration of a civil case before a trial court has reached a peak of more than three‐and‐a‐half years, and the average duration of a criminal proceeding before a court of first instance is four hundred twenty‐seven days with an additional average of five hundred fifty‐five days before the Court of Appeal. Litigants planning to appeal a first‐instance decision in a civil case can reasonably estimate that the time needed to reach a final judgment will be approximately ten years. The appalling situation has induced many disgruntled Italian litigants to sue the government for denial of justice before the European Court of Human Rights, which — applying Article 6 of the European Convention on Human Rights — has, in turn, censured the Italian government, ordering payments to individuals that in 2000 alone exceeded 600 million euros.

In 1991, the Italian Parliament created a new municipal judicial position, the Justice of the Peace (Giudice di Pace). While performing traditional judicial functions over small claims matters, the new judges (there are several in each major Italian city, depending on its population) were also empowered to mediate civil disputes, regardless of the amount of money at stake, at the request of any one of the parties.

In 1993, the Parliament passed Law No. 580, which permitted chambers of commerce to establish mediation services. Since then, more than one hundred chambers of commerce have established a number of conciliation offices throughout Italy. A subsequent act, Law No. 192 (1998), mandates pretrial mediation at the local chamber of commerce for disputes that pertain to subcontracting agreements (as defined in the law). Passed in the same year, Law No. 281 offers certain consumer associations that have filed claims against businesses the opportunity to seek mediation before the chambers of commerce. There is currently an ongoing discussion in the Parliament on a very modern mediation bill for all civil disputes, Bill 2463, which would include a definition of mediation (Article 2); encode principles and rules on flexibility, confidentiality, and non‐adjudication (Articles 3, 5, and 6); and establish public mediation entities (Articles 9, 10, and 11).

In early January 2003, the government issued a number of legislative decrees implementing long‐awaited and hotly debated reforms of corporate law. Decree No. 5 sets forth regulation on the mediation of company disputes. As with previous proposals to regulate mediation, this decree, which went into effect on January 1, 2004, attempts to promote mediation in corporate and financial matters, as defined. The new rules established a national register of private and public mediation organizations (Organismi di Conciliazione) kept by the Ministry of Justice. Mediated settlements reached through the assistance of registered organizations enjoy at least two features absent from a private mediation: (1) the settlement will be judicially enforceable via an expedited procedure and (2) the mediation proceeding will be free from stamp duty (a tax on all official documents). Moreover, if mediation is provided for by contractual clause of company by‐laws, the judge will order a stay of litigation proceedings should one or both litigants seek to sidestep mediation.

Alongside the legislative developments, a number of municipal and private initiatives should be noted. In 1996, the Rome Bar Association established a conciliation office in collaboration with the Rome Court of Appeal. During the same year, the municipality of Rome signed an agreement with the local bar to refer to the conciliation office certain pending legal cases dealing with low‐value disputes initiated by or against a citizen of the municipality. In 2002, the Milan Chamber of Commerce set up an online dispute‐resolution service for low‐value disputes. In 1991, Telecom Italia (Italy's former telecommunications monopolist) introduced a conciliation commission to deal with small consumer claims, with arbitration available should the conciliation attempt fail. One year later, the Association of Italian Banks appointed a banking ombudsman to receive complaints addressed by bank customers. Most recently, mediation services that parallel the banking customer complaints offices were created by the Italian Postal Service and by the insurance industry. The Italian Telecommunications Authority also approved mediation rules for disputes between users and providers of telecommunications services.

Despite the plethora of legislative actions related to mediation over the last fifteen years in Italy, the actual numbers of cases going to mediation have remained low.² Although over the last few years a number of individual practitioners and organizations have joined Italy's first commercial provider of dispute resolution services, Rome‐based Alternative Dispute Resolution (ADR) Center, none have reported a significant caseload. The ADR Center, currently the largest mediation service provider in the country, was established in 1998 and deals almost exclusively with high‐value international commercial disputes. With the exception of a few very recent cases, at least one of the ADR Center litigants is always a foreign company or the European subsidiary of a foreign multinational — evidence in itself that Italian corporate users, or more likely their lawyers, are still hesitant to try a procedure with which they have little familiarity.

In addition to case numbers, evidence of the disparity between the legislative framework and the enthusiasm for mediation on the ground is found in the academic arena. The ADR legislation and techniques have only recently become a major source of debate among legal scholars and practitioners in Italy. (See De Palo, D’Urso, and Golann 2004.)

The initiatives promulgated by the legislature have not reaped significant rewards at a systemic level, and evidence exists that awareness of mediation among the general public remains low. For example, despite the legislative mandate, the chambers of commerce have been unable to promote mediation throughout Italy. Almost a decade after the enactment of Law No. 580, a survey published in 2001 by the Italian Institute for Foreign Trade showed that 98 percent of Italy's exporting companies had never heard of mediation. In 2001, a study on ADR by the Italian National Institute of Statistics reported that only 4 percent of Italian people were aware that the chambers of commerce offered mediation services.

The “macro” evidence of hesitation with regard to embracing mediation outlined earlier is borne out on a “micro” level by the recent CPR Institute's European Committee survey, which provides some interesting insights into the knowledge, attitudes, and practice of individual corporate lawyers. In the survey, the in‐house legal counsels of twenty‐five major Italian companies responded.³ In an early section of the survey, the respondents were asked to comment on their “perceptions of ADR.” Seventy‐two percent of the Italian respondents indicated that they were “aware of” mediation organizations (Stipanowich and Nelson 2005).

A definition of mediation was given and the respondents were alerted to the fact that mediation is sometimes called conciliation.

All the Italian respondents thought that their companies could benefit from mediation (with the top three reasons given for the benefit reported as being: [1] mediation's usefulness when parties have an ongoing relationship, [2] the desire to limit the costs of resolution, and [3] to avoid costs associated specifically with arbitration). Despite this number, 40 percent of the companies indicated that they had never used mediation to resolve business disputes. This significant percentage seems to confirm a contradiction in the Italian experience of mediation: namely, that legislative activity in Italy has not secured mediation a prominent place in the minds and hearts of the Italian legal community. The remainder of this article will seek to explore why that is the case.

As in the previous section of the article, the discussion of the possible explanations for the contradiction in the Italian experience of mediation will be conducted on both “macro” and “micro” levels. Initially, the explanations for the hesitation to use mediation will be sought on the “micro” level by examining the attitudes of individual corporate lawyers as reflected in further data from the CPR European Committee survey. However, the responses elicited from this survey are only markers of attitudes that exist among individual lawyers and do not in themselves offer explanations as to why Italian lawyers do not embrace mediation with more zeal. For these explanations, it is necessary to explore the broader legal and social contexts in which disputes are resolved in Italy and in which the legislative framework seeks to sow seeds for the use of mediation.

At the “micro” level, one explanation for the lack of use of mediation, at least in the commercial sphere, is that lawyers do not encourage their clients to consider mediation as an alternative to litigation. In the survey, 68 percent of the Italian companies surveyed reported that an external lawyer had never advised in‐house counsel to contact a mediator before going to arbitration or to court. An additional 18 percent of companies responded that external lawyers “hardly ever” advised contacting a mediator. Only 5 percent of companies responded that external lawyers “usually” advised contacting a mediator before going to arbitration or court.

In response to a separate survey question, responses indicated that in only 18 percent of business disputes had in‐house counsel pushed for mediation by suggesting it to external lawyers to solve a business dispute before going to arbitration or to court. The survey recipients were asked to comment on what happened when they did suggest mediation to external lawyers. Of the three responses, one was positive: “Disputes usually end with a good solution for both parties” (telecommunications company). The two other responses apparently reflected negative views held by lawyers toward mediation: “He [external lawyer] was not very confident in this technique” (automotive company), and “The counterpart often doesn’t accept to solve the disputes by ADR” (automotive company).

An additional explanation for the lack of use of mediation in the commercial sphere is that in‐house lawyers do not generally insist on putting clauses into contracts to require mediation to be an initial course of action. Out of the twenty‐five Italian companies that responded to a related survey question, eleven companies responded that they did not use mediation clauses at all. Of the remaining fourteen companies, none used a dispute mediation clause every time. Only five companies responded that they “usually” used a mediation clause in their contracts. Of the remaining companies, eight “sometimes” used a mediation clause in their contracts, and one “hardly ever” did.

Additionally, the survey probes for reasons why in‐house lawyers choose not to refer business disputes to mediation organizations. The overwhelming majority of responses to this question suggest a general ignorance about the mediation process and a somewhat dismissive attitude toward it among lawyers practicing in the commercial sphere. Twenty‐two percent of the respondents claimed that they have not referred to a mediation organization to solve business disputes because they “do not know enough about the process.” Another 22 percent admitted that they “have simply never considered the choice.” An additional 23 percent of the respondents suggested that they had not referred a case to a mediation organization because, “the counterpart did not agree to participate.”

The results of the CPR European survey certainly go some way to explaining why, despite a comparatively robust legislative framework, mediation is not being more extensively used in Italy. Italian lawyers, at least in the commercial sector, are not advocating mediation: they are not advising their clients to consider mediation before going to arbitration or to court, and they are not including mediation clauses in commercial contracts. Digging a little deeper, the survey results reveal a high level of ignorance and/or apathy about the mediation process among commercial lawyers. But questions remain as to why this ignorance and/or apathy linger even in the face of such numerous legislative initiatives. The next section of this article seeks to offer some answers by considering the wider legal and social contexts in which Italian lawyers operate.

A consideration of the broader legal and social contexts that lie behind Italian mediation legislation illuminates a number of factors that may contribute to the seeming reluctance in Italy to mirror the volume of legislation with a wholehearted embrace of the use of mediation.

Italy may have the highest numbers of statutes and bills on mediation, but the reforms have been introduced in a piecemeal fashion, and a homogenous approach to the practice of mediation that might galvanize more widespread usage has yet to be formulated. For example, although the process of reforming civil procedure in order to introduce court‐annexed mediation started in Italy in 1991, the overall result has been a procedural patchwork. The Parliament initially introduced voluntary mediation conducted by the newly established Giudice di Pace, who was to have the power to try and settle all civil matters. Voluntary mediation is an option in cases involving consumer disputes, equal opportunity questions, and corporate law. Meanwhile, mandatory out‐of‐court mediation has been introduced in Italy only recently in the areas of employment disputes, public employment, and certain copyright issues.

The question must then arise as to why a homogenous approach has not been adopted. The current crisis in the courts in Italy is arguably partly the product of the intransigence of the judicial system and partly because of the unsatisfactory organization of the court system. But that bureaucracy and inflexibility can be traced to the tendency of Italians to prefer the court system as the avenue to deal with disputes, regardless of the extensive time and effort usually involved. Anything that would challenge the sacred and intangible aura that surrounds legal jurisdiction is unconsciously considered taboo. This deeply rooted attitude is more cultural than political in nature as it cuts across the boundaries of liberal and conservative political persuasions. It is reflected in the fact that those in charge of the judiciary are inclined to maintain the status quo and that legislative reforms have been frequently opposed by large sectors of the population. For example, in 1991, there was a strong resistance to the introduction of the Giudice di Pace— although recent data indicate the effectiveness of that office, with only 10 percent of decisions being appealed (De Palo and Cominelli 2003).

Alongside the myth of unlimited jurisdiction runs a long‐standing suspicion of lay judges — an attitude that would directly affect the willingness of both the legal and general populations to consider mediation as an attractive option for dispute resolution. (Lay judges, such as justices of the peace, are hired after years of experience as either lawyers or directors of certain public agencies; in Italy, however, “regular” judges are civil servants hired after completing a competitive exam, which candidates can take right after law school.) On a more practical note, it should be noted that — as in other civil‐law jurisdictions — access to trial courts is far less expensive and less technically complex in Italy than in common law countries, such as the U.K. This is a factor that, in addition to cultural attitudes, creates a disincentive to consider mediation despite the lengthy delays that litigants can expect in the court system.

In addition, the resistance to ensuring homogenous development of mediation usage in Italy may also be a matter of business interests. The number of lawyers in Italy is high, and lawyers are well represented in the Parliament. So too are notaries, accountants, tax experts, and industrial relations consultants, all of whom perform a variety of professional services that in other countries are commonly performed by lawyers. It is certainly possible that unwillingness on the part of lawmakers to address the problem of a procedural patchwork and the need for a more coherent approach to the promotion of mediation use are driven by an instinct for self‐preservation as lawyers face the prospect of competition in the business of resolving disputes.

In addition to the attitudes of professionals in the legal realm, another explanation for the relatively low use of mediation may be skepticism on the part of potential parties. Members of the general public may have been disillusioned by their experience of so‐called “manifesto” laws — statutes that invite, persuade, and proclaim, but do not provide sufficient means for their implementation and enforcement, and are thus unenforceable. An example of the possibly counterproductive effects of such statutory measures can be seen in the Turin City Council initiative to introduce compulsory mediation in certain labor disputes. Compared with the period when pretrial mediation was voluntary, the period after the initiative started saw a reduction in the total number of settlements (Chiarloni 2000). The body in charge of mandatory mediation was simply unable to cope with the huge number of cases referred to it, so that even cases with a real chance of being settled were not given the time and attention necessary for mediation to succeed. In addition, as a result of the law allowing chambers of commerce to establish mediation services, several mediation centers were opened across Italy. Despite the opening of these centers, there were few actual requests for mediation — most chambers, particularly in the south, had no requests at all. One reason for the lack of requests might well be a lack of funding for the necessary educational and promotional initiatives to support the legislative framework.

An additional reason for skepticism among potential users of mediation services is the lack of a clear definition of mediation in Italian law, although at the time of this writing, a draft bill setting out the terms to promote mediation is being reviewed by the Parliament. The draft bill (Bill 5492) sets out the definition and scope of mediation within the Italian dispute‐resolution system, and the procedures to be followed. As currently drafted, the bill includes provisions whereby judges may, if they deem fit, ask the parties to a dispute to undergo a “tentative” mediation during which the proceedings are stayed (for a maximum of one hundred twenty days). Furthermore, the draft bill imposes an obligation upon lawyers to inform their clients of all mediation alternatives to resolve disputes, including consultation with a mediation organization registered with the Ministry of Justice. The draft bill also sets out some monetary thresholds relating to claims that qualify for the “tentative” mediation procedure. Any tentative mediation procedure must last no longer than forty‐five days. If the attempted mediation fails, the parties may resume legal proceedings within six months of the expiration of the forty‐five‐day period. It should be noted that the legislative framework described earlier applies not only to commercial disputes but also to all civil matters.

The enactment of the draft bill would be welcome as a way of clearing up the confusion around the mediation procedure in Italy. A possible explanation for this confusion may be that Italians, and therefore Italian legislators, are more familiar with the concept of arbitration and have difficulty distinguishing between the two procedures. This point is illustrated by the wording of Legislative Decree No. 5, which established a highly evaluative mediation process. Pursuant to the former first part of Article 40, if the parties were unable to agree, the mediator should make a final settlement proposal. Thus, to all intents and purposes, if parties were unable to agree, their dispute would be determined by a quasi‐adjudicative process. This outcome ran counter to party expectations of mediation as an experience very different from arbitration: namely, a voluntary process, involving the facilitative role of a third‐party neutral, and resulting in only a consensual agreement. It should be noted that within a year of promulgating Decree No. 5, a further decree, No. 37, was enacted. The latter decree makes the mediator's final proposal in the case of disagreement conditional upon request by both parties. This decree removes the shadow of adjudication from the process, but it is possible that parties who participated in mediation under the initial statute may have already become disenchanted with mediation because of their earlier experience.

A final factor that might explain why mediation has not been more wholeheartedly embraced as a profession lies in the very restrictive rules surrounding the creation of a national register of mediators. As we have discussed earlier, mediation reached through registered mediation organizations has significant advantages (judicial enforceability, freedom from stamp duty). However, once registered, neither entities offering mediation services nor individual mediators may refuse to offer mediation services to any potential client without a valid reason for doing so, an obligation that seems to run counter to the autonomy assumed to accompany professionalism. (The law does not define what a “valid reason” might be, but presumably valid reasons could include conflicts of interest or the parties’ failure to pay mediation fees in advance, which some mediation organizations might require.)

In addition, and perhaps even more significantly, the cost of setting up mediations by duly‐registered mediation organizations has been determined by yet another decree, one that establishes the minimum and maximum fees to be paid by the disputing parties before the mediation begins. The fees are calculated according to the value of the dispute, regardless of how many meetings are actually held or the number of mediators participating in the mediation. The legislators clearly hoped that keeping the costs of mediation low might encourage companies to try the new process, but gave no thought to the fact that this fee structure would act as a strong disincentive to the growth of a profession of skilled and well‐qualified mediators.

The number of cases going to mediation in Italy has been surprisingly low given the volume of legislation supporting the development of mediation that the Italian legislature has promulgated since the early 1990s. Signs indicate, however, that this pattern of relative disinterest in mediation may be in the process of changing. The adoption of mediation by a number of leading Italian companies may reflect a gradual cultural and political shift toward a model in which systemic change is not solely led by regulation but rather by more informal initiatives. In addition, there are suggestions that Italian scholars and practitioners who previously had been more oriented toward consideration of the experiences of Germany and France are now beginning to take a more active interest in the legal experience of the U.K. and the U.S. Published data also suggest that interest in mediation is growing. The records of the ADR Center in Rome indicate that the number of mediation referrals for business disputes is increasing by 20 percent a year.

Whatever the reasons peculiar to Italy that might explain the seeming contradiction between a substantial legislative framework and a relatively unenthusiastic embrace of mediation and a relatively low number of cases referred to mediation, there are perhaps more general lessons that can be gleaned from the Italian experience. Given the broad cultural intransigence that has proved an obstacle to the expansion of mediation use in Italy, the strong lead of the Italian parliament was undoubtedly a necessary component to any development of a mediation field in Italy. However, whether legislation is a sufficient component for the wholehearted adoption of mediation in any state remains debatable. Italy — or any country seeking to encourage the widespread adoption of mediation — would do well to heed the experience of other European states. The experience of Switzerland strongly suggests the importance of investing in the educational efforts critical to promoting a real culture of mediation. The experiences of both the Netherlands and Denmark indicate the value of adopting a pragmatic approach that uses the results of long‐term pilot projects as powerful agents to encourage attitude change at the highest level of the judiciary.