Courts|Mediation

Court-Mandated Mediation: Perspectives from Europe, Australia and America

The 16th meeting of the World Mediation Forum of the UIA was held in Lisbon, Portugal, on January 27-28, 2012.  It was very well attended; Co-President Colin Wall noted that attendees came from 31 countries.

A panel on mandatory mediation brought out some interesting recent developments, including a game-changer in Italy. 

Alan Limbury of Woolloomooloo, Australia, reviewed the growth of mediation in that country, including the creation of LEADR as an effort to ensure that lawyers will be included in the growth of the practice.  In reviewing court responses to agreements to mediate, he distinguished between mandatory participation in the process and coerced outcomes in mediation.  Thus, as a matter of law, parties can be compelled by a court to mediate, but not to come to an agreement at the mediation.  He reported broad success in court-mandated mediation. 

Jeff Abrams of Houston, Texas, noted that mandatory mediation without assurances of inadmissibility and confidentiality may pose substantial risks, as may be the case in Italy.  However, he strongly encouraged mandatory mediation with appropriate protections, and reported that many cases in Texas have been resolved by the process since its inception in 1987.  Indeed Abrams believes that mediation flourishes only in jurisdictions in which it is (or can be made) mandatory. 

In perhaps the most compelling address of the entire conference, Giovanni de Berti of Milan, Italy, explained the year-old Italian law ordering mediation in certain disputes, designed to comply with the 2008 European Directive and also to reduce the backlog of court civil cases.  By the provisions of this law, mediation is a condition precedent to filing a case at all.  This requirement, set forth in Legislative Decree 28/2010, became effective from March 2011.  The sudden surge in mediation that was provoked by this law prompted a response by Italian mediation providers and practitioners almost overnight.  Previously, training and offering mediator services were the domain of Chambers of Commerce, professional bodies (i.e., lawyers, accountants) and a few schools.  Now, teaching schools have grown from 35 in 2008 to 234, mediation bodies from 37 in 2008 to 770.  There is, predictably, a question of quality control in many of these mediations. Applications for mediation in satisfaction of this requirement have grown to 34,000 in the six-month period from March 2011 to September 2011.  Respondents do not always accept the mediation applications, however, because they are disinclined to facilitate the litigation process by satisfying this condition precedent.  About 58% of the mediations that have taken place have resulted in agreement.  Predictably, many more cases settle prior to or after the mediation.  The average value of the disputes that have been subject to mediation is € 93,000. Businesses have been enthusiastic about the mandatory mediation requirement; lawyers have objected to the lack of a provision ensuring lawyer participation in each mediation.  In practice, applicants tend to be represented while respondents do not.  The statute is being attacked before the Italian Constitutional Court as an obstacle to access to justice, and also before the European Court of Justice because of the provision permitting the mediator to advise the court of a mediator’s proposal that is not accepted.  Judges are somewhat concerned about possible abuse of weaker parties who may forsake rights in mediation.  De Berti strongly urged his conclusion (similar to Abrams’) that mediation happens only when judges either strongly encourage it or else require it. 

 

Stefano Pavletic of Milan, Italy, reported on the same developments, noting that the parties forced to mediate still have control over the choice of providers and the creation of a new register of qualified providers and accredited mediators.  He reported that thousands of people have been accredited as mediators in Italy.  He said that lawyers and other professionals have become aware of this new market and a cultural change may be detected, and was optimistic that many civil cases will be resolved prior to filing in court. 

 

 

 

 

 

 

1 Comment
  1. Hy Dear Peter,

    even if this year I couldn’t participate to the Lisbon UIA Forum, I agree with Jeff and the others, saying that mandatory mediation can be the only right solution to expand the use of mediation. But, to do this it is necessary that mediation has strong rules especially with regard to confidentiality and velocity of mediation process. As you done in your blog some weeks ago, I want to remember that, If mediators colleagues wants to know, particularly, about the state of the art of mediation in Italy, they can read from http://www.mediate.com an article (divided in two parts) written by me on the argument.
    Best “mediation wishes” to all!! 🙂
    Alessandro

Leave a Reply

Your email address will not be published. Required fields are marked *

Name

Email