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ADR in Italy

My class in International Commercial Dispute Resolution at New York Law School is now finished, and each student was required to prepare a paper on a related topic of their choice.  All were good, happily, and some students wrote on topics that readers of this blog may find useful.  With their permission, I will post a few of them here over the next few weeks.

This paper, by Michael Martuscello, surveys the current state of business arbitration and mediation in Italy.  Of the many curious aspects he discusses, it is noteworthy that the Italian legislature, not the courts or the business community, seems to be the main driver of ADR and the main advocate for encouraging its use by business.  It is particularly interesting that, in compliance with the EU Directive, the legislature is ramping up a series of requirements that should make a big impact on the way business disputes are handled in the future — resulting perhaps in mediation rather than arbitration being the most practical way to address problems in a deal involving an Italian counterparty.

The text of the paper follows.  Please note that the citations appear as Endnotes.

 

The State of the ADR Movement in Italy:

The Advancement of Mediation in the Shadows of the Stagnation of Arbitration

by

Michael Henry Martuscello 

 Introduction

            Alternative dispute resolution (ADR) processes appear perfectly adaptable to a country, such as Italy, whose civil justice system fails to meets the needs of many of its citizens who are involved in controversy. Indeed, despite numerous reforms to the Italian Code of Civil Procedure, the judicial system remains too costly, inefficient, and overburdened to offer an effective solution to many disagreements between parties. At present, there are five million pending civil suits in Italy and this number is expected to increase by a million and a half more cases next year.[1] A 2006 study by the Confartigianato, an association of Italian craftsmen and small companies, revealed that a business must wait 1,765 days on average for the rendering of a civil verdict.[2] Given this delay in ordinary justice, it should not surprise anyone that a significant percentage of parties abandon civil trial before receiving a judgment or settle their disputes outside of court. Moreover, such lengthy trials cause the superfluous spending of millions of euros a year in litigation fees for businesses and administration fees for the Italian State. However, the long duration of civil suits costs Italy most in lost economic development. According to a 2008 World Bank Report, the slowness of the civil justice systems has stifled economic development in Italy by generating uncertainty about exchanges and discouraging investment.[3] With the length of trials continuing to increase annually, the attractiveness of ADR mechanisms to Italy should be apparent.

Since the early 1990’s, the Italian government has openly acknowledged the benefits of ADR methods and enacted a series of statutes promoting arbitration and mediation, as both complements and alternatives to court proceedings. Although failing to reduce the duration or number of ongoing civil trials, these laws have been instrumental in supporting the slow but steady growth of the ADR movement in Italy. The most influential of these laws has been legislative directive 580 of 1993, which designated the administration of arbitration and mediation as services of Italian Chambers of Commerce, because it recognized ADR procedures as a real alternative to litigation. Ever since the implementation of 580/1993, the number of ADR procedures performed annually in Italy has increased noticeably from a couple hundred in the nineties to tens of thousands in recent years. The fact that centers connected to Chambers of Commerce have performed the overwhelming amount of ADR proceedings in Italy has shown the serious impact of law 580/1993.

Nonetheless, not all methods of ADR have shared the same success. Although Italy has had a longer history of arbitration and signed several international conventions on the subject, less than a thousand such proceedings are performed on the peninsula per year while the number of mediations administered annually is in the several tens of thousands. Certainly, mediation is the preferred form of ADR in Italy and represents almost all of the tripling in ADR requests that occurred between 2005 and 2007.[4]

Yet, despite the dramatic increase in the use of mediation in recent years, neither it nor arbitration appears to be a true substitute for traditional litigation. Indeed, both ADR methods still have a too limited diffusion throughout Italy to be able to reduce the number of civil trials that occur annually in the country. In order for arbitration and mediation to become true alternatives to ordinary justice that will improve the efficiency of the civil justice system by reducing the number of civil suits, the attitude of Italian judges, lawyers, and citizens toward ADR methods must change. Judges and lawyers must realize the benefits of ADR techniques and recognize that they do not diminish their role in the civil justice system but rather augment their ability to provide relief to those involved in conflict.  Meanwhile, the Italian populace must become aware of ADR practices and abandon any skepticism about the security and utility of such processes.

To facilitate this changing of attitudes, Italian legislators must implement reforms that strengthen the effectiveness and integrity of ADR procedures. With recent thrusts coming from the European Union towards the adoption of ADR techniques to settle cross-border disputes, these attitudes are changing and the future of the ADR movement in Italy looks very promising. Having already achieved limited success in Italy, mediation and arbitration will certainly increase in coming years as Italians further accept them and promote them as alternatives to litigation. The growth of arbitration and mediation practices in Italy will benefit all those who are involved in controversy by not only providing effective mechanisms to resolve disputes but also easing some the burden placed upon the ordinary justice system by the high number of pending civil suits.

This paper will provide a portrait of Italian arbitration and mediation processes as well as predictions about and prescriptions for the future success of the ADR movement in Italy.

 I. The State of Arbitration in Italy

The use of arbitration has grown in Italy due to promotion of it by ADR centers and reforms to the Italian Code of Civil Procedure, which provides the legal framework for its practice. Although the importance of arbitration practitioners to the spread of arbitration cannot be understated, it is only because of legislators that arbitration has become a progressively more accepted and effective mechanism to resolve disputes. Indeed, legislators have increased the attractiveness and integrity of arbitration by placing the process within the law and providing provisions for the enforcement of awards. The Italian Parliament has made arbitration appealing because it chose to provide only loose regulations rather than a rigid procedural model. Thus, legislators have allowed parties to adapt the arbitration process to the requirements of their individual disputes. This adaptability has provided greater autonomy to parties to resolve controversy in their own way and reduced any anxiety that they would be trapped in a process that was no less burdensome or inefficient as civil litigation.

Although arbitration in Italy has increased significantly over the last decade, it has not done so at high enough rates to conclude that it represents a real substitute for ordinary civil justice. According to a 2008 report by the Chamber of Arbitration of Milan, which surveyed the leading ADR centers and law firms in Italy, arbitration accounted for less than 2% of all ADR proceedings performed by the study sample from the years 2005 to 2006.[5] The 2009 supplement to that report, which removed law firms from the research sample, revealed that requests for institutional arbitration represented only about 1.1% of all demands for ADR in 2007.[6] Although both of these reports concede that the number and nature of all ADR proceedings performed in Italy could not be ascertained with certainty due to their private character, the findings seem fairly credible since the studies surveyed the most well known ADR centers in Italy, which presumably manage the majority of cases. The results of both reports appear most reliable with regards to institutional arbitration because complete data was supplied by Chambers of Commerce, which handle of bulk of these proceedings.

Nonetheless, despite the limited accuracy of these studies, one can safely assume that arbitration is somewhat marginal to the total ADR movement in Italy. Indeed, while mediation proceedings numbered in the tens of thousands, only 520, 505, and 557 institutional arbitrations respectively occurred each year from 2005 to 2007.[7] Meanwhile, law firms surveyed in the 2008 report handled just 14 ad-hoc proceedings in 2005 and another 20 in 2006.[8] Ad-hoc arbitration seems even more marginal when considering that most of these proceedings are “referred to the Milan Chamber of Arbitration or the Arbitration Court of the International Chamber of Commerce in Paris”[9] and thus, become institutionalized.

Even though the amount of arbitration recently performed seems marginal when compared to the number of mediations conducted, it still denotes a dramatic increase from a decade ago, when less than a hundred of such proceedings occurred. As previously stated, both the Italian Parliament and ADR practitioners have contributed to this limited increase in the diffusion of arbitration by their promotion of the practice. While ADR centers have served a pivotal role in the rise of arbitration by administering and advertising such services, most of the credit must be conceded to lawmakers, who have endowed awards with enforceability and imparted integrity to the arbitration process through legislative reforms. Nevertheless, despite the growth of arbitration in Italy, it remains not a real widespread substitute for traditional litigation.

 

A. Current Italian Arbitration Law

In Italy, book IV, title VIII of the Italian Code of Civil Procedure (article 806-840) regulates arbitration. In 1983, 1994, and 2006 legislators made significant revisions to these sections, which had the effect of increasing the popularity of arbitration. The most recent reform modernized the procedure “by extending to all arbitration proceedings the rules, which previously applied only to international arbitration.”[10] The elimination of a distinction between domestic and international proceedings facilitated the use and spread of arbitration by creating a unitary set of rules for both foreigners and Italians that reduced much of the complexity of and confusion about the procedure. The 2006 reform pronounced for the first time provisions that permit multiparty arbitration,[11] third-party intervention,[12] and the assistance of Italian courts and expert witnesses in the taking of evidence.[13] Multiparty arbitration and third-party intervention has made arbitration adaptable to disputes involving more than two parties and hence, has greatly increased the possibilities for this process to be applied to more complex controversies than it could previously. By providing for expert witnesses, court assistance in the procurement of evidence, and the judicial summoning witnesses, the latest reform gives parties involved in arbitration many evidentiary benefits, which were previously only available by recourse in court, without the added expense that comes with litigation. Nonetheless, the 2006 reforms represent only part of the reason that arbitration usage has steadily grown.

Rather than resulting from radical reforms, the progress made by Italian legislators in promoting arbitration is primarily due to their rather loose approach to regulation. The Italian Parliament has provided wide discretion to parties to use arbitration to resolve all contractual and non-contractual controversies, except those involving inalienable rights or public concerns, such as civil status, marital separation, or the capacity of an individual.[14] This leeway in what may be arbitrated has allowed the application of arbitration to almost any private dispute while preserving the resources of the courts for those conflicts that are most important to the state.

Besides setting broad arbitrability, legislators have facilitated the growth of arbitration by requiring very few formalities for arbitration agreements. Arbitration agreements must only be in writing (including electronic formats) and define the subject matter of the dispute.[15] The simplicity of these requirements has made the adoption of arbitration extremely easy because parties can draft agreements without fear that they will be declared null and void due to formalistic defect. Courts will always find arbitration agreements, which adhere to these two requirements to be enforceable, unless the contracting parties terminate the agreement, both parties commence civil action, or one party fails to object in a timely manner to the civil suit of the other.[16]

However, the most attractive feature of Italian arbitration law is that it procedurally preserves the autonomy of parties to settle their disputes in their own way. The Italian Code of Civil Procedure supplies only a few rudimentary requirements and default rules regarding arbitration procedure. Under its provisions, parties “can freely determine the rules, the language and the seat of the arbitration”[17] or if they fail to do so, then arbitrators can. Additionally, parties have the freedom to decide upon any odd number of arbitrators, the method of appointment for arbitrators, the choice of applicable law, the ability of arbitrators to issue an award based on equity, and a time limit for rendering an award. The only mandatory rule of the procedural process is that arbitrators must respect due process by providing “equal rights to parties to be heard and to defend themselves during arbitral proceedings.”[18] Since there are very few regulations and parties can create an arbitration procedure that addresses their own individual needs, including cost allowances and time restrictions, arbitration should appeal to those who wish to avoid many of the formalities that make the civil court system complex and inefficient.

Besides its adaptability, arbitration is an appealing form of dispute resolution because legislators have provided protections that insure the integrity of the process. The Code of Civil Procedure contains provisions that allow parties to both challenge biased arbitrators and remove inefficient ones. A party may challenge an arbitrator, who lacks either independence or the necessary qualifications that are stipulated in the arbitration agreement.[19] The first of the grounds for challenging an arbitrator ensures that the arbitration process is fair and balanced, while the second one preserves the autonomy of parties to determine their own procedural rules.

Legislators have also helped to preserve the efficiency of the procedural process by providing for removal of arbitrators, who fail either to perform their duties or do so in an untimely manner.[20] The removal provision and another article,[21] which imposes liability upon arbitrators who act fraudulently or negligently in either performing their duties, delaying the proceeding, or rendering an award, discourage misfeasance by and promote professionalism among arbitrators. These provisions increase the appeal of arbitration by guaranteeing that proceedings will neither be unfair to one side nor run wild due to the fact that the parties are free to determine their own rules.

Lastly, by listing several grounds upon which to challenge an arbitration award, legislators have ensured parties that a court will not uphold an award that is unfair. An Italian appeals court may invalidate an award if: (1) an arbitration agreement is invalid; (2) the arbitrators were not appointed according to the requirements of the code; (3) someone unable to be appointed as an arbitrator rendered the award; (4) the award exceeded the scope of the arbitration agreement; (5) the award failed to include the decision, reasons for it, or the signatures of the arbitrators; (6) the time limit expired before the rendering of the award; (7) procedural formalities agreed upon by the parties were not followed; (8) the award contradicts a previous award or judgment involving the parties; or (9) the proceeding violated the principle of due process.[22] The ability of a court to overturn an award provides a mechanism of last resort that ensures the integrity and increases the attractiveness of the arbitration process by reducing skepticism about the legality and fairness of such proceedings.

 B. Improvements Needed for the Further Spread of Arbitration

Even though the lose regulatory approach of Italian legislators has led to the growth of arbitration by making it a process that can be easily adapted to the needs of parties in dispute, the Code of Civil Procedure requires further reforms in order for the use of arbitration to continue to increase. Indeed, the number of institutional arbitrations performed annually seems to have reached a plateau that is stable in time and does not suggest any grand developments in the future.[23]

Moreover, there is much room for the expansion of arbitration usage in Italy. The abovementioned 2008 study by the Milan Chamber of Arbitration revealed that that law firms handle a drastically different type of proceedings than arbitration chambers. Law firms mainly conduct arbitrations concerning international disputes of a high economic value involving large public corporations, while arbitration chambers primarily handle proceedings of a lower value involving small companies and partnerships.[24] Considering law firms handle an extremely low number of arbitrations annually and many more foreigners and Italians are undoubtedly involved in disputes, there exists a need for more proceedings of an international nature. However, more proceedings involving large public companies does not seem to be required, as almost all of the Italian economy consists of small and medium sized companies.[25]

 Italian legislators could increase the use of arbitration by first eliminating the peculiarity of the Italian system that is arbitrato irrituale. The Italian Code of Civil Procedure continues to provide a form of arbitration, known as arbitrato irrituale, in which awards do not represent a binding judgment but rather a contractual agreement between parties. Legislators have already helped to limit this type of arbitration by requiring parties, who wish to have such proceedings, to express their desire clearly in writing.[26] Nonetheless, these requirements are not enough because existence of arbitrato irrituale continues to undermine the use of arbitration in general. If lawmakers removed this peculiarity from the Code of Civil Procedure, much of the public confusion around arbitration would be removed and many Italians would see the procedure as a more secure substitute to litigation.

 Moreover, the Italian Parliament can add provisions to the Code of Civil Procedure that could greatly increase the appeal of the procedure by providing more integrity and benefits to the process. Lawmakers could require arbitrators to disclose any possible conflicts of interest that could possibly preclude them from rendering an impartial award. Almost all of the major arbitration chambers already require such disclosure and the best ones require notification if events occur during the proceeding which may effect the independence of an arbitrator. Having such a requirement in the law would increase the willingness of parties to submit a matter to arbitration because they would know that the process was fair and objective.

In addition, legislators should ensure the confidentiality of arbitration proceedings by requiring such by law and providing legal consequences for failure to comply. This is again a subject on which the major arbitration centers have rules. Confidentiality requirements would make parties feel more protected because they would know that what occurs during arbitration could not later be used against them. Such secrecy would bring arbitration closer in nature to civil litigation, in which a violation of confidentiality comes with legal consequences. The Code of Civil Procedure should certainly be amended to include confidentiality and disclosure requirements so that parties feel as secure using arbitration as they do using the ordinary civil justice system.

However, considering that Italian legislators last made major comprehensive revisions to the Code of Civil Procedure in 2006, these additional reforms do not seem forthcoming for many years.

 II. The State of Mediation in Italy

Since the Italian legislature first made mediation a widespread means of dispute resolution with law 580/1993, the practice has progressively gained popularity as a non-contentious way to settle controversy. Although ADR centers have greatly contributed to the growth of mediation by administering such proceedings, like with regards to the spread of arbitration, it is only because of lawmakers that mediation has become an accepted and effective mechanism to resolve disputes. Indeed, legislators have served a pivotal role in increasing the number of mediations performed annually by providing for such proceedings in general and special provisions of the Italian Civil Code and Code of Civil Procedure. By compelling parties in many of these statutes to engage in mediation before a civil court will hear certain types of suits, the Italian Parliament has forced Italians to use this less costly ADR method before resorting to litigation.

The majority of Italian legislation on the matter deals “only with administrative mediation and mainly—although not exclusively—with mediation proceedings administered by Chambers of Commerce.”[27] The fact that Chambers of Commerce have conducted a significant chunk of all of the proceedings in Italy has proved the necessity of such legislation to the spread of mediation. Chambers of Commerce performed 2,391 and 3,215 proceedings respectively in 2005 and 2006, while mediation centers outside of that circuit handled just 42 and 57 proceedings in those years.[28] Meanwhile, in 2007, Chambers of Commerce received 14,183 requests for mediation, a figure that dramatically dwarfs the 706 demands that independent mediation centers only received.[29] The Chamber-of-Commerce legislation has been particularly influential in facilitating the growth of this speedier alternative to ordinary justice because it made the mediation services offered by these bodies very cheap for many years and more recently free.

Outside of the Chamber of Commerce circuit, specific legislation that has made mediation mandatory in all telecommunication disputes has had a significant impact on spreading mediation. In fact, telecom disputes represent the majority of cases that are referred to mediation. Corecom, the government agencies responsible for handling all telecom disputes, performed 13,173[30] proceedings from 2005 to 2006 and received 33,167[31] addition requests for mediation in 2007. Such statistics reveal how effective legislators can be in promoting mediation (and other ADR techniques) when they make such procedures mandatory.

Companies have also contributed to the growth of mediation within Italy by providing for such proceedings in contracts with consumers as a way to offer better customer service and reduce litigation costs. Corporations often offer such mediation services in conjunction with consumer organizations. Known as joint conciliation[32], the proceeding entails a mediator trying to reach agreement between an appointed representative for both the company and the consumer. Joint conciliation centers handled 27,035[33] proceedings from 2005 to 2006. While these high numbers might suggest that joint conciliation has seen the strongest growth of any form of mediation in Italy, it has not. Instead, the large amount of joint conciliation proceedings that occurred during these years can be attributed to the use of such services by just one bank during a financial crisis that occurred in 2004.[34] Indeed, the number of new requests for joint conciliation confirms that the large number of proceedings performed from 2005-2006 was an abnormality. In 2005, 2006, and 2007, joint conciliation centers respectively received only 572, 704, and 1,999[35] new requests for mediation. Nonetheless, despite the low number of requests in recent years, joint conciliation has contributed to the growth of mediation and represents an extremely useful and versatile process for times of crisis.

Although the amount of mediation performed in Italy seems marginal when compared to the number of pending civil suits, it still shows significant growth from a decade ago when little more than a hundred proceedings were performed.[36]  The fact that mediation is much newer to Italy than arbitration, yet accounts for 98%[37] of the ADR proceedings on the peninsula shows its success. The mediation movement owes much of this achievement to legislators, who not only promoted the practice but also made it mandatory in many cases as a prerequisite to commencing civil action. The individual success of Corecom and the Chambers of Commerce, which handled 94.5%[38] of all ADR requests in 2007, must be noted to demonstrate the significant influence that legislation has had upon mediation’s spread. Indeed, mediation appears as a real complement, if not substitute, for traditional civil justice in many types of disputes because of its speed, low cost, and sometimes-obligatory nature.

A. Italian Mediation Law

            Unlike arbitration, which has its own title in the Italian Code of Civil Procedure, mediation has yet to receive a uniform set of regulations from the Italian Parliament. Instead, Italian legislators throughout the years have issued both general and specific decrees dealing with mediation.[39] The frequency of these statutes has significantly increased since the passing of law 580/1993, due to the continued acknowledgment of legislators of the benefits of mediation. However, while lawmakers focused mainly on applying mediation to consumer and labor disputes for most of the 1990’s and early 2000’s, their concentration has since shifted to using such procedures for the resolution of corporate disputes. In 2003, legislators enacted the first detailed statute (law 5/2003) dealing with corporate mediation proceedings. By expanding mediation to corporate disputes and providing specific provisions on the training of mediators, the confidentiality of proceedings, and enforceability of awards, Parliament sparked interest in the practice among attorneys and businessmen, who have since been instrumental in the growth of mediation. Consequently, mediation has come to be used for a wide variety of disputes, ranging from those of very small to those of very large economic value.

Although there are no uniform rules for mediation in Italy, there are some common features for most types of mediation, the exception being in the case of corporate mediation. The first commonality is that almost all of mediation in Italy is facilitative. Facilitative mediation means that the “mediator helps the parties without suggesting solutions to them and without examining the merits of the case.”[40] By not giving mediators the ability to adjudicate an outcome, legislators have protected the place of arbitration and litigation within the civil justice system. Facilitative mediation allows parties to feel that mediators will not judge them or work against their interests and preserves the impartial nature of the proceeding. Corporate mediation differs, however, and if parties fail to reach agreement by the end of a proceeding, then they may request a settlement proposal from the mediator.[41] The parties may then reject the proposal but doing so for unjustified reasons may affect the allocation of costs in litigation.[42] This exception to the facilitative nature of mediation inserts an arbitration-like mechanism into corporate proceedings that insures the willingness of parties to negotiate in good faith and eliminates any incentive for blocking a settlement without just cause.  Having such an evaluative mechanism for all forms of mediation, yet, might not be a good idea because it would eliminate much of the voluntary nature of the proceeding and possibly discourage consumers and others from constructively engaging this litigation alternative.

In most mediation, a settlement agreement does not have the force of a civil judgment. The settlement agreement “normally has the effect of a private agreement (i.e. it is binding between the parties, but not executory, so that a party must seek court assistance if the other party fails to perform).”[43] Even though the contractual character of the settlement agreement reinforces the voluntary nature of the proceeding, it severely limits the effectiveness of mediation to resolve disputes because parties may later refuse to honor their commitments with the knowledge that they will only be held liable for breach of contract. Once again, corporate mediation differs and a settlement agreement that is “signed by the parties and the mediator and confirmed by the local court, has the executory force of a court judgment.”[44] The enforceability of settlement agreements not only makes corporate mediation much more attractive to companies, but also encourages them to try honestly to reach a resolution because it will be much quicker and cheaper than arbitration or litigation and binding. By making all mediation settlement agreements enforceable and binding, Italian legislators could boast the number of procedures performed annually.

One of the significant weaknesses of mediation legislation is its failure to guarantee the confidentiality of most proceedings. Once again, corporate mediation is an exception and “no use may be made nor evidence be given or requested on the basis of statements issued by the parties”[45] in such a proceeding. The lack of confidentiality requirements for all proceedings discourages many parties from fully engaging in the mediation process out of fear that a settlement will not be reached and things that they reveal will later be used against them in a civil suit. Hence, the failure of legislators to make all mediations confidential has undoubtedly limited both the appeal and effect of such proceedings.

A final problem with mediation legislation is that except in corporate disputes, the commencement of a proceeding does not pause the statute of limitations for commencing a civil suit. The limitations period should be stopped in order to promote more mediation. By letting the limitations period run, legislators have discouraged people from using mediation because by seeking an alternative to litigation, they could possibly impair their ability later to pursue a judgment in court, something that one has a legal right to do in Italy.

B. The Eve of Change to Italian Mediation Law

Recently, the Italian Parliament passed a law that should drastically increase the use of mediation throughout Italy. Italian law 69/2009 seeks to implement the requirements of the EU Mediation Directive (2008/52/EC), which mandates that member nations must pronounce statutory provisions to promote mediation in all cross-border disputes, involving civil and commercial matters. The EU directive directly deals with such issues as the training of mediators, confidentiality of proceedings, enforceability of settlement agreements, and ability of parties to utilize other means to resolve disputes if mediation fails. The Italian law will undoubtedly prove so influential to the spread of mediation throughout Italy because Italian legislators have chosen to apply the principles of the EU directive to domestic disputes as well as international ones.

A draft of a legislative directive to implement the requirements of law 69/2009 is currently awaiting approval by the Italian Council of Ministers and its ratification seems certain in the coming months. The draft seeks to increase the use of mediation by requiring anyone wishing to commence a civil action concerning joint ownership, property rights, partition, inheritance, family obligations, leasing, bailment, medical malpractice, libel, defamation, or insurance, banking, or financial contracts to attempt mediation first.[46]

The draft extends to all civil and commercial mediations many provisions that will provide both freedom and security to the parties involved. The legislators, who wrote the draft, consciously avoided prescribing a formalistic procedure for mediations. Instead, they stated that procedural rules must only guarantee the confidentiality of proceedings and a mode for nominating mediators that insures their impartiality and suitability for quickly and competently completing their duty as a mediator.[47] By avoiding formalism, the proposed directive will allow both parties and mediators to decide how best to go about seeking an agreement. Such procedural leeway will make the process more adaptable to individual disputes and avoid the complexity that comes with civil action in court.

Moreover, by guaranteeing confidentiality[48], the proposed law will encourage parties to divulge more information to both the mediator and each other, which could make them vulnerable in court proceedings but facilitate settlement in mediation. Provisions[49] that prohibit information that is collected during mediation from being used in litigation and prevents mediators from being deposed further increase the possibility that parties will freely and openly negotiate in good faith because they decrease any perceived drawbacks that could come with disclosure during a proceeding.

The draft also seeks to insure the independence of mediators by requiring them to make a declaration of impartiality and to disclose immediately anything that happens during the proceeding, which may lead to prejudice.[50] This provision ensures the integrity of mediation and prevents this private form of justice from becoming an unfair procedure. This disclosure requirement is extremely important to the promotion of mediation because without it, people would view the process with skepticism and prefer to use litigation, in which the law guarantees the fairness and impartiality of judges.

By making mediation settlements enforceable, the draft law if passed will undoubtedly encourage more people to use this method of ADR. The draft provides that a settlement agreement, which is signed by the parties and mediator as well as certified for legality by a judge, has the force of an executory judgment.[51] This enforceability makes mediation a more appealing an alternative to litigation and arbitration because the effect of a settlement is the same as an award or judgment but can be obtained more quickly and cheaply.

Like previous legislation on corporate mediation, the draft law provides for evaluative mediation in the event that the facilitative process yields no settlement agreement.[52] If a party rejects the proposal of a mediator without just cause, a judge may later allocate the costs of litigation to it if the civil judgment matches the proposal.[53] This provision ensures that parties, which are forced to mediate, do not just go through mediation without exerting any effort, but rather attempt honestly and sincerely to reach a resolution.

With the recent draft of the legislative directive to implement Italian law 69/2009, mediation in Italy seems on the eve of change and expansion. Indeed, mediation usage will increase in the coming months and years as legislators make it a more effective and secure means to resolve disputes. Although it has not arrived there yet, mediation does seem to be becoming a true alternative and complement to traditional litigation.

 Conclusion

            Since the Italian civil justice system fails to offer relief to many of its citizens, who are involved in controversies, Italy must accept and advance methods of alternative dispute resolution. The growth of the ADR movement in Italy will benefit not only its civil justice system by reducing its caseload, preserving litigation for matters of superior importance to the state, and answering the calls of Italian citizens for justice, but also its economy by easing the fears of foreign investors who are currently reluctant to invest in Italy because of the inefficiency of the courts and a lack of protection.

Over the last two decades, lawmakers have been instrumental in dramatically increasing the amount of arbitration and mediation proceedings that annually occur on the peninsula by promoting such practices in statutes. These legislative initiatives have succeeded in spreading ADR practices because they have improved the integrity of such processes while leaving parties with relative freedom to determine their own rules for conducting proceedings. Nonetheless, not all types of ADR have achieved the same level of success. While tens of thousands of mediations are performed annually, less than a thousand arbitrations are conducted a year. Although some of this discrepancy is due to the fact that all but 2%[54] of mediations are conducted for free, it results mainly from the obligatory nature of mediation for many types of disputes. By making mediation a prerequisite to the pursuit of civil action in many matters, legislators have effectively promoted the use of this procedure. Conversely, arbitration has remained voluntary and the increase in its appeal is not attributable to its mandatory nature but rather its being a fairly cheap, flexible, rapid, and simple alternative to litigation.

Despite its dramatic rise over the last two decades, the ADR movement has done very little to decrease the number of pending civil suits and has not slowed the commencement of new ones. Indeed, when compared to the amount of civil trials currently in progress, the number of ADR procedures seems minimal. However, the future of ADR growth in Italy still looks promising and will hopefully eventually allow the civil justice system to function better.

An increased use of arbitration seems unlikely in the near future unless additional legislative reforms come that add confidentiality and disclosure requirements. Indeed, arbitration has appeared stagnant over the last few years with very little rise in activity. Legislators must make proceedings more efficient and secure by making parties feel more comfortable to use arbitration in place of litigation, if they wish for the practice to continue to grow.  

On the other hand, mediation is on the eve of a rapid expansion. Italian law 69/2009 will have a significant impact on the use of mediation by expanding the requirements of the EU Directive on Mediation (2008/52/EC) to not just cross-border proceedings but domestic ones as well. The new law will increase the appeal of mediation because it not only makes mediation mandatory for all civil and commercial matters but also contains provisions for flexible (non-formalistic) procedures, enforcement of settlement agreements, confidentiality of proceedings, impartiality of mediators, and evaluative processes when facilitative ones fails. Provisions of this nature already applied to corporate mediation and were the principle reasons that use of corporate mediation had grown in recent years. Undoubtedly, the application of similar provisions to all types of mediation will further facilitate the spread and use of these proceedings.

The new Italian mediation law will also hopefully increase the number of international ADR proceedings that occur in Italy. Currently, only a handful of ADR centers conduct international proceedings. Of those centers, the Chamber of Arbitration of Milan is the only one to handle a significant number of cases annually. The new law should increase the appeal to foreigners of Italy as a seat for mediation by adding more efficiency and integrity to the process. Because of this increased attractiveness, the Chamber of Arbitration of Milan, in particular, should be able to attract more business from abroad and promote itself as an ideal place for conducting ADR proceedings involving parties of diverse nationality from all over Europe, the Mediterranean, the Middle East, and North Africa. Such parties would be further attracted to Milan because it is central to these locations and thus, travel to and from proceedings would not greatly burden one party over the other.

However, the future has not yet arrived and despite the progress of the ADR movement in Italy, neither arbitration nor mediation has become a true alternative to traditional litigation. In order to increase the use of ADR to a level that will compete with traditional justice and make the latter more efficient, lawmakers will have to make many more legislative reforms. Moreover, the attitudes of Italian judges, attorneys, and people about ADR must change. Judges must acknowledge that ADR does not minimize their role in the traditional justice system because alternative justice practices only have force when courts certify them. Attorneys must realize that ADR does not marginalize them either, but instead gives them more efficient ways to provide relief to their clients and solve their problems. Lastly, the Italian populace must learn more about ADR methods so that they feel more secure about the reliability of such processes and view litigation as only a last resort when these fail. These attitudes are changing but not at a fast enough pace to know when arbitration and mediation will have a significant effect on making the traditional justice system more efficient.

In conclusion, the future of the ADR movement looks very promising mainly because of the expanded use of mediation that will come when Italian legislators finally ratify the legislative directive implementing law 69/2009 but more still has to be done to promote arbitration and make ADR methods true substitutes for traditional litigation.

 

Bibliography

 

Statutes

Tit. XIII, Bk. IV, Codice di Procedura Civile [Italian Code of Civ. Proc.], http://www.camera-arbitrale.it/Documenti/cpc_titolo_VIII_1.pdf (last accessed 1 Dec. 2009)

Legislative Directive Draft

“Schema Decreto Legislativo sulla Mediazione Civile e Commerciale,” E-mail from Carlo Mastellone, Attorney, Studio Legale Mastellone (Florence,Italy) (c.mastellone@studiomastellone.it) (4 Nov. 2009, 5:02 a.m. EDT) (copy available at http://www.sunia.it/files/contratto/conciliazione.pdf)

Reports

Bonsignore, V., Primo Rapporto sulla Diffusione della Giustizion Alternativa in Italia (Camera Arbitrale di Milano 2008), http://www.camera-arbitrale.it/Documenti/primo_rapporto_giustiziaalternativa.pdf (last accessed 1 Dec. 2009)

Articles

Anglani, A., “Italy,” Global Arbitration Review (Getting the Deal Through 2009), http://www.arbitrators.co.za/newslet/arbitration-in-47-jurisdictions-worldwide-2009.pdf (last accessed 1 Dec. 2009)

Azzali, S., Caruso, S., “The Mediation Service of the Milan Chamber of Arbitration,” Tijdshrift voor Mediation No. 3 (17 Jul. 2003 Boom Juridische Uitgevers), http://www.camera-arbitrale.it/Documenti/azzali_caruso_03_mediation.pdf (last accessed 1 Dec. 2009)

Bernini, G., “Italian Law of Arbitration,” Journal on Arbitration (forthcoming; 11 Oct. 09), http://www.arbitration-icca.org/media/0/12571315850070/bernini_arbitration_italy.pdf (last accessed 1 Dec. 2009)

Bonsignore, V., “La Diffusione della Giustizia Alternativa in Italia: i Risultati di una Ricerca” in Bonsignore, V., Secondo Rapporto sulla Diffusione della Giustizia Alternativa in Italia (Camera Arbitrale di Milano 2009), http://www.camera-arbitrale.it/Documenti/secondo_rapporto_giustiziaalternativa.pdf (last accessed 1 Dec. 2009)

DeBerti, G., “Surveys Reveal Further Spread of Arbitration and Mediation,” International Law Office Arbitration Newsletter (12 June 2008) http://www.internationallawoffice.com/Newsletters/detail.aspx?g=f530dd09-939b-4878-bff7-f5a2449e3ff0 (last accessed 1 Dec. 2009)

DeBerti, G., “The Growth of Mediation,” International Law Office Arbitration Newsletter (July 2006), http://www.internationallawoffice.com/Newsletters/detail.aspx?g=631670bf-cd11-db11-8a10-00065bfd3168 (last accessed 1 Dec. 2009)

DeBerti, G., “Overview,” International Law Office Arbitration Newsletter (Apr. 2006) http://www.internationallawoffice.com/Newsletters/detail.aspx?g=f1147574-a375-4b5c-bf06-23ca97ec1413 (last accessed 1 Dec. 2009)

Deodato, G., “La Seconda Edizione del Rapporto sulla Diffusione della Giustizia Alternativa in Italia,” in Bonsignore, V., Secondo Rapporto sulla Diffusione della Giustizia Alternativa in Italia (Camera Arbitrale di Milano 2009), http://www.camera-arbitrale.it/Documenti/secondo_rapporto_giustiziaalternativa.pdf (last accessed 1 Dec. 2009)

Invernizzi, F., “La Conciliazione Commerciale: Regole e Istruzioni per l’Uso,” Ventiquattrore Avvocato (May 2009), http://www.camera-arbitrale.it/Documenti/invernizzi_conciliazione_commericale.pdf (last accessed 1 Dec. 2009)

Pompei, T., “La Cultura Della Giustizia E La Promozione Dell’ADR (Alternative Dispute Resolution)” in Bonsignore, V., Secondo Rapporto sulla Diffusione della Giustizia Alternativa in Italia (Camera Arbitrale di Milano 2009), http://www.camera-arbitrale.it/Documenti/secondo_rapporto_giustiziaalternativa.pdf (last accessed 1 Dec. 2009)

Sgubini, A., Etal., “International Mediation Legislations and the Practical Use” (19 Apr. 2009), http://www.bridge-mediation.com/main/ingles/documents/inter_med_legisl_final.pdf (last accessed 1 Dec. 2009)

Speeches

Stefano Azzali, Remarks at Luncheon, Secretary General of the Chamber of Arbitration of Milan, Arbitration in Italy and Beyond, (N.Y. St. Bar Assoc. Comm. on Intl. Arb. and ADR, N.Y.C., 18 Nov. 09)

Endnotes


[1] 120, F. Invernizzi, “La Conciliazione Commerciale: Regole e Istruzioni per l’Uso,” Ventiquattrore Avvocato (May 2009), http://www.camera-arbitrale.it/Documenti/invernizzi_conciliazione_commericale.pdf (last accessed 1 Dec. 2009). Translated from Italian: “Attualmente in Italia sono pendenti oltre 5 milioni di cause civili, e si calcola che ogni anno ve ne siano un milione e mezzo in più rispetto all’anno precedente.”

 [2] 198, T. Pompei, “La Cultura Della Giustizia E La Promozione Dell’ADR (Alternative Dispute Resolution)” in V. Bonsignore, Secondo Rapporto sulla Diffusione della Giustizia Alternativa in Italia (Camera Arbitrale di Milano 2009), http://www.camera-arbitrale.it/Documenti/secondo_rapporto_giustiziaalternativa.pdf (last accessed 1 Dec. 2009). Translated from Italian: “Le imprese devono attendere in media 1.765 giorni (quasi 5 anni) per avere giustizia durante una causa civile.”

 [3] 13, G. Deodato, “La Seconda Edizione del Rapporto sulla Diffusione della Giustizia Alternativa in Italia,” in V. Bonsignore, Secondo Rapporto sulla Diffusione della Giustizia Alternativa in Italia (Camera Arbitrale di Milano 2009), http://www.camera-arbitrale.it/Documenti/secondo_rapporto_giustiziaalternativa.pdf (last accessed 1 Dec. 2009). Translated from Italian: “Emerge . . . dal rapporto Doing Business 2008 della World Bank che la lentezza dei processi costituisce uno dei principali ostacoli allo sviluppo produttivo dell’Italia, in quanto genera incertezza negli scambi e demotiva gli investitori.”

 [4] 4, Ibid. Translated from Italian: “Negli ultimi tre anni il numero globale delle domande inerenti il ricorso a questi strumenti [ADR] e più che triplicato, passando da 15.916 del 2005, a 26.896 del 2006 e 50.808 del 2007.”

 [5] Law firms handled 0.1% and arbitration chambers handled between 0.1-2% of all ADR proceedings in Italy. Data provided by: 25, V. Bonsignore, Primo Rapporto sulla Diffusione della Giustizion Alternativa in Italia (Camera Arbitrale di Milano 2008), http://www.camera-arbitrale.it/Documenti/primo_rapporto_giustiziaalternativa.pdf (last accessed 1 Dec. 2009). Translated from Italian: “le Camere Arbitrali . . . rappresenta una percentuale compresa tra lo 0,1% e l’1,9% di tutto il movimento ADR”; 31, Ibid. Translated from Italian: “il numero di procedimenti svolti dagli studi legali rappresenta solo lo 0,1% di tutti i procedimenti ADR.”

 [6] 81, V. Bonsignore, “La Diffusione della Giustizia Alternativa in Italia: i Risultati di una Ricerca” in V. Bonsignore, Secondo Rapporto sulla Diffusione della Giustizia Alternativa in Italia (Camera Arbitrale di Milano 2009), http://www.camera-arbitrale.it/Documenti/secondo_rapporto_giustiziaalternativa.pdf (last accessed 1 Dec. 2009). Translated from Italian: “le domande pervenute a tutte le Camere arbitrali rappresentano solo 1,1% del totale di tutte le domande di ADR registrate in Italia.”

 [7] 137, Ibid. Translated from Italian: “gli arbitrati amministrati in Italia . . . sono precisamente 520 nel 2005, 505 nel 2006, e 557 nel 2007.”

 [8] 94, V. Bonsignore, Op Cit., ”Primo Rapporto sulla Diffusione della Giustizion Alternativa in Italia.” Translated from Italian: “gli studi legale hanno dichiarato di essere stati coinvolti in . . . 14 arbitrati ad hoc . . . nel 2005 e 20 arbitrati ad hoc . . . nel 2006.”

 [9] G. DeBerti, “Surveys Reveal Further Spread of Arbitration and Mediation,” International Law Office Arbitration Newsletter (12 June 2008) http://www.internationallawoffice.com/Newsletters/detail.aspx?g=f530dd09-939b-4878-bff7-f5a2449e3ff0 (last accessed 1 Dec. 2009).

 [10] G. DeBerti, “Overview,” International Law Office Arbitration Newsletter (April 2006) http://www.internationallawoffice.com/Newsletters/detail.aspx?g=f1147574-a375-4b5c-bf06-23ca97ec1413 (last accessed 1 Dec. 2009).

 [11] Art. 816-quarter, Tit. XIII, Bk. IV, Italian Code of Civ. Proc., http://www.camera-arbitrale.it/Documenti/cpc_titolo_VIII_1.pdf (last accessed 1 Dec. 2009) (“Qualora più di due parti siano vincolate dalla stessa convenzione d’arbitrato, ciascuna parte può convenire tutte o alcune delle altre nel medesimo procedimento arbitrale se la convenzione d’arbitrato devolve a un terzo la nomina degli arbitri, se gli arbitri sono nominati con l’accordo di tutte le parti, ovvero se le altre parti, dopo che la prima ha nominato l’arbitro o gli arbitri, nominano d’accordo un ugual numero di arbitri o ne affidano a un terzo la nomina.”).

 [12] Art. 816-quinquies, Tit. XIII, Bk. IV, Italian Code of Civ. Proc., http://www.camera-arbitrale.it/Documenti/cpc_titolo_VIII_1.pdf (last accessed 1 Dec. 2009)(“L’intervento volontario o la chiamata in arbitrato di un terzo sono ammessi solo con l’accordo del terzo e delle parti e con il consenso degli arbitri.”).

 [13] Article 816-ter, Tit. XIII, Bk. IV, Italian Code of Civ. Proc., http://www.camera-arbitrale.it/Documenti/cpc_titolo_VIII_1.pdf (last accessed 1 Dec. 2009)(“L’istruttoria o singoli atti di istruzione possono essere delegati dagli arbitri ad uno di essi. ?Gli arbitri possono assumere direttamente presso di sé la testimonianza, ovvero deliberare di assumere la deposizione del testimone, ove questi vi consenta, nella sua abitazione o nel suo ufficio. Possono altresì deliberare di assumere la deposizione richiedendo al testimone di fornire per iscritto risposte a quesiti nel termine che essi stessi stabiliscono.?Se un testimone rifiuta di comparire davanti agli arbitri, questi, quando lo ritengono opportuno secondo le circostanze, possono richiedere al presidente del tribunale della sede dell’arbitrato, che ne ordini la comparizione davanti a loro.?Nell’ipotesi prevista dal precedente comma il termine per la pronuncia del lodo e’ sospeso dalla data dell’ordinanza alla data dell’udienza fissata per l’assunzione della testimonianza.?Gli arbitri possono farsi assistere da uno o più consulenti tecnici. Possono essere nominati consulenti tecnici sia persone fisiche, sia enti.?Gli arbitri possono chiedere alla pubblica amministrazione le informazioni scritte relative ad atti e documenti dell’amministrazione stessa, che e’ necessario acquisire al giudizio.”).

 [14] 160, A. Anglani, “Italy,” Global Arbitration Review (Getting the Deal Through 2009), http://www.arbitrators.co.za/newslet/arbitration-in-47-jurisdictions-worldwide-2009.pdf (last accessed 1 Dec. 2009)

 [15] Article 807, Title XIII, Book IV, Italian Code of Civil Procedure, http://www.camera-arbitrale.it/Documenti/cpc_titolo_VIII_1.pdf (last accessed 1 Dec. 2009)(“ Il compromesso deve, a pena di nullità, essere fatto per iscritto e determinare l’oggetto della controversia.”)

 [16] 161, A. Anglani, Op. Cit.

 [17] 4, G. Bernini, “Italian Law of Arbitration,” Journal on Arbitration (forthcoming; 10/11/09), http://www.arbitration-icca.org/media/0/12571315850070/bernini_arbitration_italy.pdf (last accessed 1 Dec. 2009)

 [18] Ibid.

 [19] Art. 815, Tit. XIII, Bk. IV, Italian Code of Civ. Proc., http://www.camera-arbitrale.it/Documenti/cpc_titolo_VIII_1.pdf (last accessed 1 Dec. 2009).

 [20] Art. 813-bis, Tit. XIII, Bk. IV, Italian Code of Civ. Proc., http://www.camera-arbitrale.it/Documenti/cpc_titolo_VIII_1.pdf (last accessed 1 Dec. 2009).

 [21] Art. 813-ter, Tit. XIII, Bk. IV, Italian Code of Civ. Proc., http://www.camera-arbitrale.it/Documenti/cpc_titolo_VIII_1.pdf (last accessed 1 Dec. 2009).

 [22] Art. 829, Tit. XIII, Bk. IV, Italian Code of Civ. Proc., http://www.camera-arbitrale.it/Documenti/cpc_titolo_VIII_1.pdf (last accessed 1 Dec. 2009). Translated from Italian: “1) se il compromesso e’ nullo; ?2) se gli arbitri non sono stati nominati con le forme e nei modi prescritti nei capi I e II del presente titolo, purché la nullità sia stata dedotta nel giudizio arbitrale; ?3) se il lodo e’ stato pronunciato da chi non poteva essere nominato arbitro a norma dell’articolo 812; ?4) se il lodo ha pronunciato fuori dei limiti del compromesso o non ha pronunciato su alcuno degli oggetti del compromesso o contiene disposizioni contraddittorie, salva la disposizione dell’articolo 817; ?5) se il lodo non contiene i requisiti indicati nei numeri 3, 4, 5 e 6 del secondo comma dell’articolo 823, salvo il disposto del terzo comma di detto articolo; ?6) se il lodo e’ stato pronunciato dopo la scadenza del termine indicato nell’articolo 820, salvo il disposto dell’articolo 821; ?7) se nel procedimento non sono state osservate le forme prescritte per i giudizi sotto pena di nullità, quando le parti ne avevano stabilita l’osservanza a norma dell’articolo 816 e la nullità non e’ stata sanata; ?8) se il lodo e’ contrario ad altro precedente lodo non più impugnabile o a precedente sentenza passata in giudicato tra le parti, purché la relativa eccezione sia stata dedotta nel giudizio arbitrale; ?9) se non e’ stato osservato nel procedimento arbitrale il principio del contraddittorio.”

 [23] 137, V. Bonsignore, Op. Cit., “La Diffusione della Giustizia Alternativa in Italia: i Risultati di una Ricerca.” Translated from Italian: “L’arbitrato amministrato appare quindi aver conseguito una propria quota di procedure, assai stabile nel tempo e che non sembra lasciar presagire grandi sviluppi futuri.”

 [24] 16, V. Bonsignore, ”Primo Rapporto sulla Diffusione della Giustizia Alternativa in Italia” (2007) translated from Italian: “Le Camere Arbitrali . . . . amministano, infatti, procedimenti di carattere nazionale, di valore economico piu basso e relativi a societa di persone. mentre [gli studi legali] si occupano anche di arbitrati internazionali, promossi nella maggior parte dei casi da societa di capitali e di valore economico medio sei volte superiore.”

 [25] 97% of the Italian Economy is made up of small and medium sized companies: Stefano Azzali, Remarks at Luncheon, Secretary General of the Chamber of Arbitration of Milan, Arbitration in Italy and Beyond, (N.Y. St. Bar Assoc. Comm. on Intl. Arb. and ADR, N.Y.C., 18 Nov. 09).

 [26] Art. 808-ter, Tit. XIII, Bk. IV, Italian Code of Civ. Proc., http://www.camera-arbitrale.it/Documenti/cpc_titolo_VIII_1.pdf (last accessed 1 December 2009) (“Le parti possono, con disposizione espressa per iscritto, stabilire che, in deroga a quanto disposto dall’articolo 824-bis, la controversia sia definita dagli arbitri mediante determinazione contrattuale.”).

 [27] G. DeBerti, “The Growth of Mediation,” International Law Office Arbitration Newsletter (July 2006), http://www.internationallawoffice.com/Newsletters/detail.aspx?g=631670bf-cd11-db11-8a10-00065bfd3168 (last accessed 1 December 2009).

 [28] 118, V. Bonsignore, Op. Cit., “Primo Rapporto sulla Diffusione della Giustizion Alternativa in Italia.” Translated from Italian: “Le Camere di Conciliazione Amministrata nel 2005 hanno . . . gestito 42 procedimenti, mentre nel 2006 . . . sono salite . . . i procedimenti a 57.” 175, Ibid. Translated from Italian: “nel 2005 sono stati gestiti 2.391 procedimenti di conciliazione e nel 2006 3.215 [dalle Camere di Commercio.”

 [29] 66, V. Bonsignore, Op. Cit. “La Diffusione della Giustizia Alternativa in Italia: i Risultati di una Ricerca. Refer to Table Translated from Italian: “Domande di conciliazione 2007 presso le Camere di Commercio 14.183”; “Domande di conciliazione 2007 al di fuori delle Camere di Commercio 706”

 [30] 145, V. Bonsignore, Op. Cit., “Primo Rapporto sulla Diffusione della Giustizion Alternativa in Italia.” Translated from Italian: “I Corecom hanno . . . gestito 13.173 procedimenti (di cui 4.133 nel 2005 e 9.040 nel 2006).”

 [31] 68, V. Bonsignore, Op. Cit., “La Diffusione della Giustizia Alternativa in Italia: i Risultati di una Ricerca.” Refer to Table Translated from Italian: “Domande 2007 Conciliazione presso I Corecom 33.167”

 [32] Many Italian companies offer joint conciliation services, including “Banca Intesa, Tim, Telecom Italia, Acqua Latina, Acquedotto Pugliese, Poste Italiane, Banco Posta, Enel, Publiambiente SPA, Global Trust, ANIA, H3G, Elitel Srl, Experian Information Services SPA, Capitalia, Unicredit, Confservizi, Autostrade, Monte dei Paschi di Siena, Avedisco, Satla-CAN (Servizio di tintolavanderia), Wind Telecomunicazioni [and] Vodafone.” 206-207, T. Pompei, Op.Cit.

 [33] 132, V. Bonsignore, Op. Cit., “Primo Rapporto sulla Diffusione della Giustizion Alternativa in Italia.” Translated from Italian: “I Centri di Conciliazione Paritetica hanno . . . gestito 27.035 [procedimenti].”

 [34] Ibid. Translated from Italian: “Il grande divario tra domande e procedimenti dipende del fatto che una banca ha gestito nel 2005 ben 18.588 procedure, le cui domande erano state presentate nell’anno precedente alla ricerca (ovvero il 2004), perché si trattava di controversie legate ai crack finanziari avvenuti in quegli anni.”

 [35] 66, V. Bonsignore, Op. Cit. “La Diffusione della Giustizia Alternativa in Italia: i Risultati di una Ricerca.” Refer to Table Translated from Italian: “Domande 2005 conciliazione Paritetica 572; domande 2006 conciliazione Paritetica 704; domande 2007 conciliazione Paritetica 1.999”

 [36] G. DeBerti, Op. Cit., “The Growth of Mediation.” Figure Taken from Statement: “Mediation . . . has been growing continuously, from just over 100 cases in 1997 to more than 9,300 in 2006.”

 [37] 15, V. Bonsignore, Op. Cit., “Primo Rapporto sulla Diffusione della Giustizion Alternativa in Italia.” Translated from Italian: “La conciliazione rappresenti il 98% di tutti i procedimenti [ADR].”

 [38] 142, V. Bonsignore, Op. Cit., “La Diffusione della Giustizia Alternativa in Italia: i Risultati di una Ricerca.” Refer to Table Translated from Italian: “Le Camere di Commercio e i Corecom con i loro servizi di conciliazione gestiscono il 94,5% di tutte le domande di ADR presentate nel 2007.”

 [39] A Good Summary of Italian Mediation Law is Provided by A. Sgubini, etal., “International Mediation Legislations and the Practical Use” (19 Apr. 2009), http://www.bridge-mediation.com/main/ingles/documents/inter_med_legisl_final.pdf (last accessed 1 Dec. 2009). (last accessed 1 Dec. 2009)(“General Legislation: Art. 912 of Civil Code clearly explains what mediation (conciliation) is in the controversy between two or more owners of “non-public waters and the role of the judge as a mediator (year 1942); Art. 185 of Civil Procedure Code (recently amended) provides with “attempt of mediation” before the judge only whether the parties agree to do so (beforehand the “attempt” was compulsory for the judge, but the law was not applied since the parties simply didn’t attend the relevant hearing); Art. 420 of Civil Procedure Code in the field of Labor Law obliges the plaintiff to file before a special Mediation Commission an “attempt of mediation” with the defendant, prior to go to the court in case the mediation fails. In case of lack of such previous step, the judge stops the procedure before him and orders the parties to try the mediation; Art. 708 of Civil Procedure Code in the field of Family Law  ( separation and divorce ) obliges the President of the Tribunal at the first hearing to try to mediate the controversy, which is often only a formality, since the parties have already decided to settle all the matter together with their lawyers; Art. 320 of Civil Procedure Code provides that the Justice of Peace (Giudice di Pace, formerly Giudice Conciliatore) must perform an “attempt of mediation” at the first hearing. Also this enactment is not so much applied, as is the case in out-of court conciliations. Art. 322 of Civil Procedure Code in the field of out-of-court conciliation before the Justice of Peace provides with this, opportunity given to parties out of any litigation proceeding. In this case, the Justice of Peace acts like a mediator but if the settled matter is out of his judicial competence, the mediation agreement may not have any legal enforcement.”) (Special Legislation: On line mediation: This procedure is regulated by legislative decree n. 70 of 2003, which has been enacted in accordance with European Directive 2000/31/CE on e-commerce; Agriculture Contracts: Law n. 203 of 1982 obliges the parties to a previous attempt of mediation before going to the court, as is the case for Labor Law Litigation; Reorganization of the Chambers of Commerce: Law n. 590 of 1993 has obliged all the 103 Chambers of Commerce of Italy to create Mediation and Arbitration services; Proceedings before the Public Administration and Public Works Contracts: various laws provide for a “pro bono agreement” (accordo bonario) such as Presidential Decrees n. 109 of 1999 and n. 170 of 2005 and legislative decree n. 163 of 2006; Tourism: a restatement of the national laws on tourism  (law n. 165 of 2001, art. 4) provides for mediation in the controversy arising out of misconduct of the tourism agency or tour operator; Consumer Code: Legislative decree n. 206 of 2005, enacted under pressure of European Authorities, provides for mediation, mainly organized by the Chambers of Commerce or by Consumers’ Associations; Copyright: Legislative decree n. 68 of 2003 which applies an European Directive on such field, provides for mediation especially in the use of reproduction rights of any kind by multimedia devices; Social Security: Legislative decree n. 124 of 2004 providing for a rationalization of the inspection functions has approved in some circumstances the use of mediation for social cases; Financial Investments and Savings : Law n. 265 of 2005 provides for several mediation procedures organized by banks together with Consumers’ Associations; Family Agreements on enterprise succession: Law n. 55 of 2006 provides for mediation as regulated by the reform of Company Law (see above) with the purpose of preserving the management of a family enterprise in case of succession; Franchising: Law n. 129 of 2004 provides for mediation as regulated by the reform of Company Law (see above); Sport Law: this field is very special in Italy, because any controversy is to be solved outside the ordinary courts either in mediation or in arbitration procedures before special Sport Chambers. The most recent law in this field is Law n. 280 of 2003; Harbour Pro Bono Agreement: The Harbour Commander has authority for solving any dispute arising out within the Harbour area in the field regulated by art. 598 of Navigation Code; Public Utility Service, Energy and Gas: Law n. 481 of 1995 and Authorities’ Regulations n. 127 of 2003 and n. 45 of 2005 provide for mediation in these matters before special mediation commission organized by the relevant Authorities; Company Law: Legislative Decree n. 5 of 2003 has reformed the civil procedure rules for the controversy in Company law and other similar fields, and has provided for new rules concerning mediation and arbitration, creating special public and private organisms for training of mediators and offering mediation services, under the supervision of the Ministry of Justice; Outsourcing and Subcontractors: Law n. 192 of 1998 has provided for a compulsory attempt of mediation and a subsequent non compulsory arbitration in such type of litigation cases; Telecom, Postal Services and Insurance: such field in which controversy is widespread is regulated by autonomous Mediation Regulation, in accordance with Consumers’ Associations; Public Waters: Royal Decree n. 1775 of 1933 provides for mediation in this field; Parental responsibility: Law n. 54 of 2006, which has modified art. 155 sections of Civil Code provides for mediation services proposed by the judge for solving disputes concerning the parental responsibility (joint education of minors) in Family law; Agreement by adhesion and collaborative repent: Legislative decree n. 218 of 1997 provides for pro bono agreement in the field of Taxation to solve disputes with the Income Tax Authorities; Pro bono agreement in International Fiscal Disputes: Law n. 99 of 1993, ratifying Brussels Convention of 1990 on avoidance of double taxations, provides for mediation between the concerned Countries in matter of taxation.)

 [40] 1, S. Azzali, “The Mediation Service of the Milan Chamber of Arbitration,” Tijdshrift voor Mediation No. 3 (17 Jul. 2003 Boom Juridische Uitgevers), http://www.camera-arbitrale.it/Documenti/azzali_caruso_03_mediation.pdf (last accessed 1 Dec. 2009).

 [41] G. DeBerti, Op. Cit., “The Growth of Mediation.”

 [42] Ibid.

 [43] Ibid.

 [44] Ibid.

 [45] Ibid.

 [46] Art. 4, “Schema Decreto Legislativo sulla Mediazione Civile e Commerciale,” E-mail from Carlo Mastellone, Attorney, Studio Legale Mastellone (Florence, Italy)(c.mastellone@studiomastellone.it)(4 Nov. 2009, 5:02 a.m. EDT) (copy available at http://www.sunia.it/files/contratto/conciliazione.pdf). Translated from Italian: “Chi intende esercitare in giudizio un’azione relativa a una controversia in material di condominio, diritti reali, divisione, successioni ereditarie, patti di famiglia, locazione, comodato, affitto di aziende, risarcimento del danno derivante da responsabilità medica e da diffamazione con il mezzo della stampa o con altro mezzo di pubblicità, contratti assicurativi, bancari, e finanziari deve esperire il procedimento di mediazione.”

 [47] Art. 3, “Schema Decreto Legislativo sulla Mediazione Civile e Commerciale” E-mail from Carlo Mastellone, Attorney, Studio Legale Mastellone (Florence, Italy)(c.mastellone@studiomastellone.it)(4 Nov. 2009, 5:02 a.m. EDT) (copy available at http://www.sunia.it/files/contratto/conciliazione.pdf). Translated from Italian: “Il regolamento deve in ogni caso garantire la riservatezza del procedimento . . . nonché modalità di nomina del mediatore che ne assicurano l’imparzialità e l’idoneità al corretto e sollecito espletamento dell’incarico.”

 [48] Art. 9, “Schema Decreto Legislativo sulla Mediazione Civile e Commerciale,” E-mail from Carlo Mastellone, Attorney, Studio Legale Mastellone (Florence, Italy)(c.mastellone@studiomastellone.it)(4 Nov. 2009, 5:02 a.m. EDT) (copy available at http://www.sunia.it/files/contratto/conciliazione.pdf)(“1. Chiunque presta la propria opera o il proprio servizio nell’organismo è tenuto all’obbligo di riservatezza rispetto alle dichiarazioni rese e alle informazioni acquisite durante il procedimento di mediazione. 2. Rispetto alle dichiarazioni e informazioni acquisite nel corso delle sessioni separate e salvo consenso della parte dichiarante o dalla quale provengono le informazioni, il mediatore è altresì tenuto alla riservatezza nei confronti delle altre parti.”).

 [49] Art. 10, “Schema Decreto Legislativo sulla Mediazione Civile e Commerciale,” E-mail from Carlo Mastellone, Attorney, Studio Legale Mastellone (Florence, Italy)(c.mastellone@studiomastellone.it)(4 Nov. 2009, 5:02 a.m. EDT) (copy available at http://www.sunia.it/files/contratto/conciliazione.pdf)(1. Salvo diverso accordo delle parti, le dichiarazioni rese o le informazioni acquisite nel corso del procedimento di mediazione non possono essere utilizzate nel giudizio avente il medesimo oggetto anche parziale, iniziato o riassunto a séguito dell’insuccesso della mediazione. Sulle stesse dichiarazioni e informazioni non è ammessa prova testimoniale. 2. Il mediatore non può essere tenuto a deporre sulle dichiarazioni e sulle informazioni conosciute nel procedimento di mediazione, né davanti all’autorità giudiziaria né davanti ad altra autorità.).

 [50] Art. 14, “Schema Decreto Legislativo sulla Mediazione Civile e Commerciale,” E-mail from Carlo Mastellone, Attorney, Studio Legale Mastellone (Florence, Italy)(c.mastellone@studiomastellone.it)(4 Nov. 2009, 5:02 a.m. EDT) (copy available at http://www.sunia.it/files/contratto/conciliazione.pdf). Translated from Italian: “Al mediatore e fatto, altresì, obbligo di: a) sottoscrivere . . . una dichiarazione di imparzialità . . . b) informare immediatamente l’organismo e le parti delle ragioni di possibili pregiudizio all’imparzialità nello svolgimento della mediazione.”

 [51] Art. 12, “Schema Decreto Legislativo sulla Mediazione Civile e Commerciale” E-mail from Carlo Mastellone, Attorney, Studio Legale Mastellone (Florence, Italy)(c.mastellone@studiomastellone.it)(4 Nov. 2009, 5:02 a.m. EDT) (copy available at http://www.sunia.it/files/contratto/conciliazione.pdf). Translated from Italian: “Il verbale [sottoscritto delle parti e dal mediatore e omologato del presidente del tribunale] costituisce titolo esecutivo.”

 [52] Art. 11, “Schema Decreto Legislativo sulla Mediazione Civile e Commerciale” E-mail from Carlo Mastellone, Attorney, Studio Legale Mastellone (Florence, Italy)(c.mastellone@studiomastellone.it)(4 Nov. 2009, 5:02 a.m. EDT) (copy available at http://www.sunia.it/files/contratto/conciliazione.pdf).  Translated from Italian: “Quando l’accordo non e raggiunto, il mediatore formula una proposta di conciliazione.”

 [53] Art. 13, “Schema Decreto Legislativo sulla Mediazione Civile e Commerciale” E-mail from Carlo Mastellone, Attorney, Studio Legale Mastellone (Florence, Italy)(c.mastellone@studiomastellone.it)(4 Nov. 2009, 5:02 a.m. EDT) (copy available at http://www.sunia.it/files/contratto/conciliazione.pdf). Translated from Italian: “Quando il provvedimento che definisce il giudizio corrisponde interamente al contenuto della proposta, il giudice esclude la ripetizione delle spese della parte vincitrice che ha rifiutato la proposta.”

 [54] 141, V. Bonsignore, Op. Cit., “La Diffusione della Giustizia Alternativa in Italia: i Risultati di una Ricerca” (“Le uniche conciliazioni offerti a pagamento sono state dunque quelle amministrate al di fuori del circuito camerale, che, forse non a caso, rappresentano però meno del 2% di tutte le conciliazione”)

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