The Mediation Times

 

More on mediation in Italy

by Amanda on July 9, 2009

- Tentative compulsory conciliation before trial: Italy has no real system of mandatory referral to private mediation, delivered by a professional judge, during a dispute, or even a system of referring parties. However, Italian law has developed many systems for using mandatory conciliation (mediation) before any litigation for some specific sectors: for sub-contractors (through the Chamber of Commerce) and some telecommunications disputes (consumer). There is no data on the outcomes of such systems.
- Optional consultation for specialised areas not in litigation: in recent times, Italy has developed a large number of voluntary conciliation programmes:
a) Board of Conciliationof the Bar Association of Rome, which has had good success mostly with disputes between the municipality of Rome and individuals in cases where there is political will on the part of the municipality to find an amicable solution.
b) advising of consultation and arbitration of Telecom Italia, or other major business or banking ombudsman.
c) conciliation helpdesks at chambers of commerce, dealing with a few thousand cases a year, sometimes between firms, but most often between businesses and consumers.
d) establishment of an optional conciliation process for matters in Company Law (Decree Legislative 2003), through agencies listed on an official list maintained by the Ministry of Justice, ensuring a convenient process, which respects confidentiality. In this regard, an agreement once approved by the presiding judge, becomes binding, for example the registration of a judicial mortgage.
- Mandatory Court Conciliation during trial: this happens in Employment Law (matters dealt with by professional judges), where the court is obliged to attempt a conciliation during the hearing. It should be noted that the same requirement was made optional for all civil cases in a recent reform, following the recognition of its usefulness. Mandated conciliation in Employment Law matters seems to give good results because it combines an official status with an oral procedure. A study of the Turin court reports, however, shows that conciliation is more successful on appeal in cases where the employer was successful at first instance. This emphasizes again the important issue of economic inequality between the parties.
The same system exists in divorce, as in french law, where the judge must attempt conciliation before anything else.
- Optional Judicial Conciliation outside of the trial: if Italy does not have a mechanism for   compulsory judicial conciliation outside the trial, it does have a kind of voluntary conciliation before Justice of the Peace.  The system has had a very limited success especially for cases not in the jurisdiction of justices of the peace.  The belief is that mediation only works for litigated cases.

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