Main features of the new Italian discipline on mediation in civil and commercial disputes

a peculiar implementation of Directive 2008/52/EC

Abstract

The Author, in the context of a Roundtable organised by the University of Zaragoza (Spain) on “Mediation and Arbitration. Current Situation and Reform Perspectives” (Zaragoza, 11 April 2011), gives a brief description of the fundamental features of the new Italian discipline on mediation aimed at conciliation, as established by Decreto Legislativo (Legislative Decree) No. 28/2010 as enactment of Directive 2008/52/EC on some aspects of mediation in civil and commercial disputes. The Author underlines how the “peculiarities” of the Italian discipline, that are its critical aspects, may end up drifting “Italian-style mediation” apart from the traditional model of mediation as a voluntary and confidential instrument of dispute settlement (alternative to in-court proceedings). Such “peculiarities” are identified on the one hand, in the establishment of compulsory mediation proceedings (on the parties’ expenses) in an extensive and exhaustive number of cases; on the other hand, in the possibility for the mediator to make to the parties (beside any joint request by such parties) an offer of settlement which, if refused, may have negative consequences (for the party who refused such offer) on the allocation of litigation costs in further in-court proceedings. Searching for the true reasons which brought to the introduction of such “peculiar” mediation, the Author believes that the Italian legislator was excessively influenced by the potential this type of mediation could have in reducing in-court disputes. Analysing how other legal systems dealt with the issue, the Author disagrees with the Italian choice hoping for a reform and warning academics and pratictioners (both Italian and foreign) on the importance of considering mediation not just as an instrument to reduce the number of in-court proceedings, but as a complementary process to be developed in the view of improving access to justice.