Conflict Resolution|Europe|Human Rights

ADR as a Human Rights Violation (??)

I had a good chuckle at an article that appears in the current issue of Dispute Resolution International, the journal of the Dispute Resolution Section of the International Bar Association.  Daniele Cutolo and Mark Alexander Shalaby discuss a case brought in Italy to test whether an Italian statute requiring mediation prior to certain consumer court proceedings violates Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ensuring access to the courts.  The lower court found that it did.

Ya gotta smile.

Goofys Bewilder

The authors note that, in Italy,

civil proceedings have increased by 90 percent from 1979 to 2009.  The average duration is 887 days for a decision of a court of the first instance, 808 days for the court of appeal and 912 for the Supreme Court: 2,607 days in total, or about seven years.

In light of this state of affairs, the Italian Government itself was found to have violated the Convention’s court access provisions and fined €41 million between 2002 and 2006.  So what could possibly be wrong with an alternative procedure to obtain redress during one’s own lifetime?  A lot, in Italy, if you’re a judge, I guess.  (Do these guys get paid by the case?)

In the case at issue, a customer sought €1,000 because the phone company had failed to deliver telecommunications services, including internet.  Her claim, filed before a Justice of the Peace in Naples, was deemed inadmissible because she had not first submitted to mediation as required by the prevailing statute governing consumer complaints in telecommunication.  The mediation is free of charge (unless conducted by a private provider at the parties’ election) and must be completed within 30 days. The Justice of the Peace ruled that the regulation denied the consumer access to the courts and referred the matter to (who else?) the court.

The authors further note:

The World Bank ranks Italy in 156th position (out of 181 ranked countries) for enforcement of contracts, coming after Angola, Gabon and Botswana.  By contrast, in 2009 alone, a total of approximately 30,000 disputes in the area of telecommunications services were settled through mandatory mediation, with an average duration to settlement of 60 days.

Noting that “in most consumer disputes the inordinate length and excessive cost of the legal procedure are out of proportion to the limited value of the case,” the authors review EU Directives concerning both telecommunications and ADR, and mandatory mediation provisions (for and against) in Germany, Poland, Austria, Greece, Slovenia, Spain and England. 

They conclude that “mandatory mediation does not involve the problems connected with mandatory arbitration because access to the courts is only temporarily suspended and the parties cannot be forced into an agreement.  It is only the attempt to resolve the dispute that is mandatory, not the agreement.”  Thus, they conclude, as long as the mediation is quick, transparent, simple and inexpensive, and as long as the claim reverts to the court in the event of impasse, the requirement to mediate “pursues legitimate objectives in the general interest” and should be permitted.

Two thoughts:  Is anyone bothered by the fact that the analysis starts with a clearly dysfunctional court system and considers alternatives to it, rather starting with the needs of consumers for redress and considering the best way to provide that service?

Second:  Might the United States consider, instead of class action arbitration, consumer protection statutes and other meat-cleaver approaches to reform, a similar system requiring individual consumer claims to be mediated prior to being litigated?  That is to say, having their problem actually resolved promptly and on terms they agree to?  Or is that too radical?

  1. Due to spending cutbacks required by California’s continuing budget crisis, our time to trial will soon be approaching the 887 days reported in Italy. And appeals already take a comparable amount of time. Given those kinds of delays in access to court, would I be in favor of mandatory mediation prior to filing a lawsuit? I think not, because to me the idea of “mandatory” is inconsistent with the idea of “mediation.” They are almost a contradiction in terms. Since I believe that mediation should be voluntary, I might even agree that any procedure, even a procedure as wonderful as mediation, should not be required prior to filing a lawsuit. If someone owes me money, or runs me over with their car, or fires me from my job, I should have the right to sue them immediately! Then even if my case might not come to trial for two years (and 95% of cases never get to trial anyway), they still have to hire a lawyer and respond to my suit right away. After I have the satisfaction of making someone respond to my suit right away, then maybe I would be interested in mediation.

  2. Dear Peter,

    the problem if ADR clause violates Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ensuring access to the courts, is old like the world.
    In Italy we are discussing wheter mandatory (by law) mediation is against the Constitution or not!
    Some lawyer and SOME civil procedure professor say that if a law provides for mandatory attempt of mediation this must be considered as violation of article 24 of Italian Constitution that says that: “Everyone can take legal action to protect their legitimate rights and interests. The defense is inviolable at every stage and level of the proceedings”.
    In nuce, they say that nobody can be forced for a prior attempt of mediation because mediation has to be only on voluntary basis and if the contrary happens it is not constitutional.
    This problem has now to be considered with major attention because of the new mediation law.
    On 20 March 2010 was enacted the new Italian legislative decree No. 28
    The above mentioned Decree contains rules regulating and promoting the use of mediation in civil and commercial disputes in Italy.
    What is most novel and noteworthy about the Decree is its introduction of mandatory mediation to the Italian legal system and also, depending on the results of the mandatory mediation, the arrangements for judicial expenses.
    The Decree has established that disputes in the following categories are subject to mandatory mediation: condominium and real rights; division proceedings; hereditary succession; family agreements; lease; gratuitous bail; business leasing; compensation for damages deriving from medical liability and defamation through the press or other means of publicity; insurance, banking and financial agreements.
    We are waiting for the implementing decrees… which are expected for release in September !!!

  3. Alessandro:

    Thanks for your informative reply. Among my many questions is this: The Human Rights Convention applies everywhere, not just Italy. Why is it that only in Italy is the claim made that mandatory mediation violates the Convention?

    (Best personal wishes, and I hope to see you soon!)

    — Peter

  4. I conducted a difficult, but successful mediation for the U.S E.E.O.C. today. It would not have succeeded if the parties were not willing to engage in the process, but were forced into it.

    By definition, mediation is a voluntary process; to me mandatory mediation is an oxymoron and a delay in the process. Parties must buy into the procedure and not see it as a way to get free discovery for it to be successful.

    Paul S. McDonough

  5. Peter, although I come late to this interesting post of yours, I’d like to make a couple of points in favor of mandatory mediation in Italy and other locations.
    1. In many (most) jurisdictions around the world, including Italy, mediation is virtually unknown to parties and practitioners. The only way to get parties to the mediation table in the first place, is through some type of “forcing” mechanism, like a requirement to mediate as a precondition to filing suit (Italy) or costs sanctions for failing or refusing to do so. Voluntary mediation is virtually non-existent.
    2. In any system, there will be vested (financial) interests in preserving any type of inefficiency, and initiatives to reduce inefficiencies are perceived as threats. Certainly, parties/consumers have very little financial (and no human rights) interest in being able to go directly to court instead of passing first through a free mediation, but a considerable part of the bar does. In Italy, small claims – even € 1,000 – can entitle lawyers to recover their legal fees. It may only be € 100, or even less, and recovery of these modest fees may consistitute a portion of many lawyers’ income (and these are truly small claims, as there are no rights of class action to speak of.)
    3. Therefore, it is not a question of human rights or access to justice for consumers, but really “access to fees” for a part of the bar that is driving the opposition to mandatory mediation, in Italy and other locations.

    And there you have an answer to your question as to why an Italian court has treated mandatory mediation as a violation of human rights: because it is perceived as a threat to those with an interest in the legal system’s existing inefficiencies. It remains to be seen whether the new law that Alessandro describes will ultimately represent a bold step forward, or if those with vested interests will find a way to diminish it to a small step that preserves the status quo inefficiencies. Italy invented the concept of avoiding change by changing just a bit. (Tommasi di Lampedusa’s famous words in The Leopard.)

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