L’FMI: l’Italia deve ulteriormente rafforzare la nuova mediazione
The Italian authorities have, over the years, taken steps to remove bottlenecks and speed up judicial proceedings. While these measures are generally steps in the right direction, more can be done. Consideration could be given, inter alia, to reviewing court fees, improving the new mandatory mediation scheme, strengthening court management, and reforming the appeal system.
(ii) Strengthening out of court dispute settlement
After being declared unconstitutional in 2012, compulsory mediation was reinstated in 2013. This is a positive development. However, thus far, mediation has not been widely and consistently used in Italy following its introduction three years ago. The reasons range from a lack of strong incentives for all parties to a limited knowledge among the general public about the “mediation avenue.” That said, the inefficiency of the justice system itself is a key obstacle. Cross country experience shows that mediation works well and is widespread in countries where the justice system also works well. Where the justice system is inefficient, parties (notably, a party that expects to lose the case) may not find it attractive to settle the disputes at an early stage through mediation and may prefer to take advantage of the lengthy judicial process. Notwithstanding, data provided by the authorities indicate that mediation is starting to pick up. It remains to be seen whether this trend will continue as a result of the adoption of the new mediation legislation.
The compulsory presence of lawyers in mediation could be reconsidered. The compulsory presence of lawyers in all mediation proceedings may create an unnecessary reserved area for lawyers, increase costs, hamper competition, and reduce the ability of other professionals (who may be more adequately trained to deal with the dispute at stake) to intervene in the mediation process. […] The authorities’ efforts to actively promote out of court dispute settlement, including mediation, are steps in the right direction. However, these efforts could be strengthened by:
- Allowing mediation to take place without the compulsory presence of lawyers;
- Developing standards for the selection, responsibilities, training and qualification of mediators;
- Informing market participants and the public at large about which procedures are subject to mediation (mandatory or otherwise) and about the time, process, and costs of mediation;
- Creating expedited procedures for mediation decisions which are challenged in court (ndr. questo suggerimento sembra essere superato in quanto gli accordi di conciliazione sono già titolo esecutivo).