Analysis 17/2016: Italian laboratory of mediation
Synthesis:
1. Lengthy court proceedings are a problem with which Italians have been struggling for years. Their average length is now twice the average in the European Union. Notorious delays in the justice system cost the Italian people about 1% of GDP every year.
2. The ineffectiveness of the Italian legal system influences other aspects of the economy, for example:
• a decrease in foreign direct investments;
• weak growth of the credit market and a rise in the borrowing costs, which result in reduced economic growth;
• the size of enterprises – a long time of redress and the ineffective labor law do not encourage investment and increase in employment;
• the state of the labor market, determined by the efficiency of local jurisdiction;
• the number of bankruptcies - the length of the procedures contributes to the loss of liquidity;
• entrepreneurship and innovation.
3. The sources of the Italian problem are primarily seen in:
• mediation procedures that do not work properly - the reform of the justice system introduced the right to compensation for the length of the court proceedings; that caused mass suits and further system dysfunction;
• inefficiencies in courts, which are second most numerous in Europe (influx of cases is badly managed; the introduction of the electronic platform in the courts is delayed);
• the complexity of Italian legislation and its variability;
• the number of lawyers, which is twice the European average, their strong position in the Italian parliament and their monopoly in all forms of alternative dispute resolution (ADR).
4. The Italian legislator, in various ways and with various results, has been trying for years to heal the situation in the justice system, e.g. experimenting with ADR. However, completely voluntary mediation did not give satisfactory results. In 2014, an introductory mediation meeting was made mandatory for some types of cases. This solution has been recognized by the European Parliament as a model for other countries that experience ineffectiveness of voluntary mediation and struggle with the chronic problem of lengthy court proceedings.
5. The case of Italian ADR shows that::
• an introduction of mediation will not, by itself, cure the judiciary. A comprehensive systemic change is needed to fix the root causes of the problems, instead of reducing their effects only. Mediation works best in a sound legal system;
• In Italy, full voluntary mediation has failed to deliver satisfactory results – an introductory mediation meeting should be mandatory in certain types of cases;
• It is worth considering a temporary pilot program where those cases that are a real burden to courts are sent to mediation if it can be done without prejudice to the public and the judiciary;
• It is important how mediation is introduced into the legal system and what place it takes in it. The actions should not lead to conflicts with the legal community, but at the same time, their monopoly over mediation should be prevented.
Full analysis (in Polish) is aviliable here.
You are welcome to contact our expert:
Anna Wąsowska, lawyer, mediator
e-mail: [email protected]
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