Implementation of Mediation Directive in Italy

Roberta Regazzoni Milan Chamber of Arbitration (Milan Chamber of Commerce)

Workshop on Mediation for Business OperatorsChamber of Commerce and Industry of Serbia

Court

The Judge decides the caseThe outcome is a decisionThe decision is imposed on the PartiesOnly the rights of the Parties are taken into accountAny emotional aspect does not countThe investigation is about the past (what has happened, who is right?)

Mediation

1.The Mediator does not decide

2.The outcome is an agreement

3.Parties are not obliged to reach an agreement

4.It’s interests’ based

5. the emotional side counts

6.It’s future – oriented (how can we solve this problem?)

WHY MEDIATION?

• I need to preserve the business relationship

• I need to keep the situation confidential

• I need to sort the problem out very quickly

• I need a customized solution

• (cross-border) I can bypass the issues relating another judicial sistem/applicable law

• Predictable costs

the Parties and their advisors (lawyers/accountants/managers) meet a third neutral (the Mediator) who:

– facilitates the communication– manages emotions and conflict– (re)start a new negotiation phase by providing

them with tools in order to collaborate to a mutual satisfying solution

HOW DOES IT WORK?Facilitative model

The Mediator

expert in Mediation and conflict management techniques

helps the parties in finding by themselves the most appropriate solution for their case (empowerment)

has to cope with:•conflict•(mis)communication•negotiation flow•technical problem

The Mediator must be:•Independent: no business/personal relationship with the parties•Impartial: cannot favour one party at the other’s expenses•Neutral: no direct/indirect interest in the outcome of the mediation

Implementation of Mediation Directive (2008/52) in Italy

2006 2007 2008

Justice of the Peace

453 506 533

Court 1.121 1.107 1.108

Superior Court

1.056 1.125 1.197

Length of civil judicial proceedings in DAYS

4.768 judicial cases out of 100.000 citizens5.826.440 open proceedings

Italian Ministry of Justice website

- Legislative decree 2010 n. 28 on mediation «aimed at conciliation of civil and commercial disputes»

- Ministry of Justice decree 2010/180

- alienable rights

- civil/commercial

- domestic/cross-border

Mandatory Mediation

NB it is mandatory to try Mediation before starting a judicial proceedings, it is not

mandatory to reach a settlement

Classes of Disputes - Inheritance and family business agreements- Bank/financial/insurance contracts- Commodatum- Lease of going concerns- Claim for damages: a) medical malpracticeb) defamation through press or other mediac) generated by vehicles/floating- Right in rem- Termination of co-ownership- Renting- Condominium

Benefits (incentives) for users

- Interruption of the period of limitation

- suspension of prescription

- Mediation agreement is enforceable

- acts and agreements concerning the Mediation are exempt from stamp duty and charges, the Mediation fees give rise to tax credits for the parties

Definitions:

MediationProcess, however denominated, carried out by an impartial third, finalized to assist 2 or more Parties in finding an amicable settlement for the resolution of a dispute or the formulation of a proposal for the resolution

MediatorThe person/s that individually or jointly carry out the Mediation with no power of adjudication or binding decision on the Parties (the Mediator must be listed in a specific Ministry of Justice’s register)

Organismo (Mediation Provider)

Public/private body which provides a Mediation service in compliance with Decree 28/2010

accreditation by the Ministry of Justice

over 900 Mediation providers

Duration: the Mediation proceedings must be completed within 4 months from the filing unless

the parties agree otherwise

The Mediation proceedings can be carried out also online

The request for Mediation can be filed anywhere – no territorial jurisdiction criteria

Fees are predetermined by the law (min/max)

There’s no obligation for legal advice or legal representation in principle

(see on the contrary the rules of the provider set up by the Milan Bar where it is mandatory for the Parties to be assisted by a lawyer in the

mediation proceedings)

The lawyer has an obligation to inform the client about Mediation

Confidentiality:

It’s an obligation for those who take part in the Mediation (officers, mediators, experts, parties). All declarations made and information acquired in a Mediation can’t be the subject

of a witness/oath

and can’t be used in a subsequent judicial proceedings

One of the Parties does not show up-> a report must be draft by the

mediator, and the judge, in the subsequent judicial proceedings, can deduce evidence by the non participation in the Mediation without a

justified reason + an economic sanction

agreement -> put into writing signed by the Parties AND the Mediator

If one of the Parties does not perform the agreement, the party who has an interest in the fulfilment, can asks the

Court for an immediate enforcement

Possible outcomes (1)

Possible outcomes (2)

If the Mediation fails (and nobody asks for a mediator’s proposal), the Mediator will draft a report stating that they

participated in the Mediation but they reached no agreement. This report will be part of the file submitted to

the Court by the Parties in order to start the judicial proceedings

If no settlement is found, the Mediator can make a proposal. The mediator must make a proposal if all the

Parties ask for it.The proposal can be rejected, but if the outcome of the

subsequent court proceedings turns out to be identical, the Judge can sanction the Party who rejected the proposal

(judicial fees)

The proposal cannot keep record of statements and declarations conveyed by the parties during the Mediation

unless they expressly agree so

Possible outcomes (3)

The Mediator (eligibility criteria)

Education qualification: 3 years degree (minimum) or registration with professional organizations

+50 hrs basic training on Mediation techniques

+

specific 2-year refresh course held by a training entity accredited by the Ministry of Justice

+

Honourability= good standing

Mediator must be:

Independent = no personal/business relationship with the parties

Impartial = cannot favor one party in detriment of the other

Neutral = no direct interest in the outcome of the Mediation

The Mediator can be appointed by the provider/the parties

can carry out her/his task with the help of a co-Mediator and/or an expert

1 YEAR OF MANDATORY MEDIATION (March 2012 - National)

91.690 requests for mediation filed

Most frequent cases: in Rem, building rental, bank contracts, insurance contracts, medical malpractice

(only) 35% agreed to participate in the mediation

52% reached an agreement

77% of the requests fall into the mandatory field

Over 85% of the parties were assisted by a lawyer

118.299 Euro = average economic value

56 days average length of the proceedings

Savings for 123 million Euros

1 YEAR OF MANDATORY MEDIATION (March 2012 – Milan Mediation Service)

1.651 requests for mediation filed

Most frequent cases: in Rem, building rental, bank contracts, insurance contracts, medical malpractice

(only) 31% agreed to participate in the mediation

42% reached an agreement during the meeting/s and

16% before it

79% of the requests fall into the mandatory field

260.000 Euro = average economic value

41 days average length of the proceedings

Issues raised by the new law:- Costs for the users (extra (judicial) costs in case the

dispute won’t be settled in Mediation)- Access to court - (Bar national association) legal assistance not

mandatory- Some classes of disputes are not suitable for mediation

(?)- Jurisditionalization of Mediation (less informal/flexible)

The law has been challenged in front of the Italian Constitutional Court (right to directly apply to Court (access to Justice)/legislator exceeded the terms of the enactement law/legal advice not required by law) – the decision has still to be issued. But a press agency by the Court communicated that the legislator went further the delegation law.

What next?

What next?