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