The Implementation of The European Mediation Directive in Italy

The Italian Mediation Law (Legislative Decree 28/2010) is the result of a larger effort by European Union (“EU”) members to comply with a directive to provide mediation for international disputes.  Italy went beyond the mandate of the Directive: the decree provides that an attempt to mediate before accredited providers is a condition precedent to bringing a suit in court in certain subject matters, such as property rights, trusts and estates, loans, disputes arising out of car and boat accidents, medical malpractice, insurance, banking and financial contracts, among others.  According to the Italian Ministry of Justice Report of 2012[1], there have been over 60,000 mediations filed in only nine months post implementation.

Mediation allows a state to reduce the burden on the court system and allows its citizens the possibility for obtaining amicable, faster and a less expensive solution to their dispute.  A recent European study gathered data on mediation collected from more than 40 experts representing all EU countries as well as findings from the World Bank’s “Doing Business” report[2].  The study compared the time and costs of litigation to mediation in the member states, concluding that mediation does in fact create significant reduction in both factors.  For example, in Italy it takes an average of 1,210 days and €15,370 to resolve a dispute, whereas through mediation, it would take only 47 days and cost €4,369.  It is important to note that the study took into account the fact that mediation sometimes fails to resolve the dispute, which is then generally followed by litigation in court.  Even after considering the burden resulting from the potential failure of mediation, the results are still favorable.  The minimum success rate of mediation cases required to create a reduction in time and cost in a country’s legal system such as Italy’s is a mere four percent for time and 28% for costs.

Italy currently has a backlog of 5.4 million pending cases, which are clogging the court system.  A citizen’s access to justice is questionable when he/she has to wait an average of eight years for his/her case to be litigated.  Mediation could just be the right solution to this very overloaded court system.

The new law has been opposed by Italian attorneys since its enactment, in particular by Italy’s leading organization of lawyers, the Organismo Unitario dell’Avvocatura (“OUA”).  In fact, in March 2011, the OUA called for a strike to protest the enactment of the law and the legislation is being challenged in front of the Constitutional Court.  The OUA is against mandatory mediation, especially when it does not require the presence of a lawyer.  For reasons that I’m sure are apparent to most, they want mediation to be optional for litigants and to require the assistance of lawyers.

Not everybody opposes the new law, however.  Some bar associations in larger cities, such as Rome, as well as major industry groups (such as Confindustria, Italy’s federation of employers) are supporters of the mediation law as they can understand that Italy needs a fair and fast court system that guarantees access to justice.

Currently, the litigation over the new mandatory mediation law is still on and the Constitutional Court is expected to strike a decision in the near future.  However, fierce opposition by a majority of influential Italian attorneys may have an impact on the court’s decision.  The success of this law can only be achieved through cooperation by all interested parties.  The best interest of our citizens should be the focus.  Italy’s inability to find the right solution to this abrasive dilemma will only maintain a status quo that has proven to be ineffective and inefficient.