The Mediation Times

 

Mediation in Italy

by Amanda on July 9, 2009

I have had business connections in Italy all my working life in a variety of sectors which include steel and alloy production, galvanising and commodity broking. This took me into the realms of construction projects and white goods production, distribution agreements and agency agreements. Later, I was involved with the fashion industry, leather goods, shoes and more recently I was the lead on a project about storytelling based in Rome and which was designed to promote storytelling as a vehicle for conflict resolution. Along the way, the overriding theme from Italian business people has been that the court process is a nightmare: an excruciatingly long, complicated and expensive process.

Italy is also a country of parallel universes: there are those who follow the procedures and pass the parcel along prescribed row of functionaries and there are those who never follow any procedures. What surprises me is that those who might be expected to favour a “workaround” or alternative approach are not using mediation despite their frustrations with the “procedures” and despite the inevitable damage to their international business, their reputations and long term success.

Many Italian businesses are seasonal, fashion and food are prime examples. The disputes may be about trade marks, passing-off, late deliveries, quality and agency agreements. These all need fast and efficient interventions to get the business back on track.

So it is something of a conundrum that Italy has been painfully slow in adopting mediation. Not least because the Italians I know love doing a deal and love debate. What is getting in the way of the message? Is it culture? Is it that Italian companies are more often defendants who know they are liable and don’t want to settle anytime soon because they will be the paying party? Is it that they love paying their lawyers? That they love the fight and consider winning at trial as the only option? Is it a misunderstanding that mediation means “giving something up” and Italians don’t like to give anything up? Some or all of this may be true sometimes but it certainly can’t be the whole story.

In 2007, a report was published by The Delegation of the National Assembly for the European Union on The development of mediation in the European Union. It was part of the preparation for the EU Directive and this is what was said about Italy at that time. The information was provided by Italians involved in dispute resolution:

Abstract: Italy has many forms of mediation in civil or criminal, but overall they have had very limited success, given the judicial make-up of the country.
Generally, Italy resists the development of mediation for two reasons:
- The number of lawyers is currently approximately 180 000 (1 lawyer per 326 inhabitants) and continues to increase.
Systems aimed at avoiding or reducing the length of trials attract lobbying by lawyers, represented in Parliament, who see mediation as a threat to their business. More generally, the Italian judiciary, characterised by a preference for doctrine, view alternative dispute resolution methods as undermining important principles;
- The slow pace of Italian justice (Italy was placed under the supervision of the Council of Europe for that reason). The use of mediation presents a disadvantage for the weakest economic party who would be forced to use mediation, even though it would be very unfavorable for them, in the hope of receiving at least a minimum.

However, in order to alleviate the burden on the justice system (the number of lay judges is equal to that of professional judges in Italy), the Italian legislature has often made use of mediation programmes. Here are the different types of mediation that can be found in Italy… read more of the translation

In summary, the report says that conciliation (rather than mediation) has some success where the disputes concern consumer matters (low quantum?), and some success in Employment matters where the Employer has won at first instance and the claimant appeals (low quantum?)

My own thoughts on why mediation hasn’t taken off in Italy are around my observation that emphasis on conciliation by judges is likely to discourage demand for properly trained Italian mediators and would undermine the progress of anyone  who tries to build a practice. Without a choice of good mediators, lawyers are unlikely to risk their case on an unknown process. There are good mediators in Italy but there is certainly a need for more.

I would hope that the wider publication of successfully mediated commercial disputes in other European countries, the approaching implementation of the EU Directive for cross-border disputes and the consistent figure of around 75% settled on the day or shortly afterwards will generte more curiosity amongst in-house lawyers about the business benefits of using mediation to keep their business on track and the encouragement to potentially excellent mediators to take up the challenge of training in a new discipline and educate their colleagues in the benefits for everyone.

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