On May 24, 2008, The Parliament of the European Union and its Council adopted a directive encouraging mediation throughout the European Union. The Directive took effect on June 13, 2008. It was aimed primarily at cross-border disputes.  Although encouraged the use of mediation in domestic cases, it did not mandate it. 

Nonetheless, in late 2010, Italy imposed mandatory mediation as a condition precedent to filing a broad range of domestic civil cases, with effect from March 2011.  The purpose of the law was to reduce the huge backlog of cases in the Italian courts, cut costs, and shorten the time from case filing to resolution. Certain common types of probate, real estate, contract, personal injury and maritime matters were subjected to mandatory mediation,     Hundreds of mediation bodies sprang up, and legal practitioners expected mediation to become an important alternative source of work.

The Italian law had a demonstrable and substantial effect on resolving civil cases, with nearly 200,000 mediations started after the law’s passage, compared to just 1,000 a year earlier. Fifty percent of the cases mediated reached resolution sooner than the three-year average from filing to trial-court decision. But legal practitioners widely criticized the mandatory mediation law, and in October of 2012, Italy’s Constitutional Court ruled it unconstitutional, Gone were the fast, efficient days of mandatory mediation. 

But not for long. 

In June 2013, Italy adopted a revised mandatory mediation statute, crafted by the Italian Ministry of Justice. The new statute allows litigants in the early stages of mediation to withdraw or opt out of the process at nominal cost.  Time will tell if this new law passes constitutional muster and outlasts its critics. But it could well provide the EU -- and the rest of the world – with a viable new model for reducing the cost and time involved in litigating disputes

 By Jeff Benz

Jeff Benz is a Los Angeles-based arbitrator and mediator who serves on the panels for the American Arbitration Association, Hong Kong International Arbitration Center, Beijing Arbitration Commission, Republic of China Arbitration Association, London Court of International Arbitration, International Chamber of Commerce, Court of Arbitration for Sport, and others.