A Mediation Innovation in Italy that Works! Middle Ground between Voluntary and Mandatory

By: Donald L. Swanson

“Millions of dollars and Euros” have been spent “on projects and awareness campaigns” to promote the use of mediation. “With few exceptions. . . this approach failed.”

Leonardo D’Urso, April 2018

In recent years, Italy introduced a new and highly-successful mediation program. It’s success is described in this article by Leonardo D’Urso:

Italy’s ‘Required Initial Mediation Session’: Bridging the Gap between Mandatory and Voluntary Mediation, 36 Alternatives 56 (April 2018)

Three Doorways to Mediation

The Italy program offers these three doorways to mediation:

(1) “Recourse by Voluntary Agreement of the Parties or by a Contract Clause.” This is a typical type of entirely-voluntary mediation.

(2) “Recourse Ordered by a Judge.” This is a typical type of court-ordered mediation.

(3) “Recourse by Voluntary Agreement during a ‘Required Initial Mediation Session.’” This is an initial-session innovation. Here’s how it works:

In certain civil and commercial disputes, the plaintiff must first (before filing a lawsuit) file a mediation request, attend an initial mediation session and pay a small administrative fee;

In the initial session, the mediator explains the mediation process; and

Then, the parties can either, (i) continue to mediate (with additional fees), or (ii) “opt out” and litigate.

Effectiveness—Dramatic Differences

These three doorways, collectively, resulted in 200,000 full mediations. But the effectiveness of the entirely-voluntary and court-ordered doorways differ dramatically from the initial-session doorway. Here’s how:

(1) While entirely-voluntary mediations “reached a success rate of 60%,” they rarely occurred—only 10% of the 200,000 mediations began this way.

(2) Judges refused to order parties into mediation—only 1,900 of the 200,000 mediations (less than 1%) began by court order.

(3) Nearly 180,000 of the 200,000 mediations began with an initial required session that proceeded on to a full mediation. And the full mediations achieved a “success rate” of “almost 50%.” As a result:

A substantial decrease has occurred, since 2013, in court-filed cases;

Italy now has more full mediations than cases in court, for types of disputes covered by the initial-session program; and

The European Court of justice has ruled that the mandatory initial-session “is fully compatible with the law.”

Additional Information

Leonardo D’Urso provides, in his article linked above, some information on problems of the entirely-voluntary and court-ordered doorways:

The entirely-voluntary doorway, gets little use.  Most European jurisdictions, for example, have laws allowing for “voluntary recourse to mediation,” but mediation in Europe, on average, is used “in less than one percent of the cases in court”; and

The court-ordered doorway gets even less use—Leonardo D’Urso muses in understated fashion that, “Italian judges should be trained more to . . . refer parties to mediation.”

Some Lessons

As to the entirely-voluntary doorway, the Italian experience confirms what empirical evidence shows in the U.S.: entirely-voluntary mediation systems are under-utilized.

As to the court-ordered doorway, many U.S. judges are similar to the Italian judges: while they order parties, and their attorneys, around all the time—on both procedural and substantive matters—they become bashful about ordering parties into mediation.

How can this be? It’s a puzzle . . . a conundrum . . . an enigma . . . etc.

As to the initial-session doorway, the Italian experience confirms what we know in the U.S.—that parties, when directed into mediation, commonly find the mediation process useful in resolving their disputes.

Conclusion

The Italian experience confirms that:

(i) mediation is a useful tool in resolving disputes,

(ii) getting parties into mediation is the tricky part; and

(iii) in the words of my famous mediator friend, Jack Esher, “once the horse is led to water, she will at least 50% of the time choose to drink whether she wanted to go there or not.”

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