{"id":603,"date":"2010-06-14T09:35:46","date_gmt":"2010-06-14T13:35:46","guid":{"rendered":"http:\/\/businessconflictmanagement.com\/blog\/?p=603"},"modified":"2010-06-14T09:35:46","modified_gmt":"2010-06-14T13:35:46","slug":"adr-as-a-human-rights-violation","status":"publish","type":"post","link":"http:\/\/www.businessconflictmanagement.com\/blog\/2010\/06\/adr-as-a-human-rights-violation\/","title":{"rendered":"ADR as a Human Rights Violation (??)"},"content":{"rendered":"

I had a good chuckle at an article that appears in the current issue of Dispute Resolution International<\/a><\/em>, the journal of the Dispute Resolution Section of the International Bar Association.\u00a0 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<\/a>, ensuring access to the courts.\u00a0 The lower court found that it did.<\/p>\n

Ya gotta smile.<\/p>\n

\"Goofys<\/a><\/p>\n

The authors note that, in Italy,<\/p>\n

civil proceedings have increased by 90 percent from 1979 to 2009.\u00a0 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.<\/p><\/blockquote>\n

In light of this state of affairs, the Italian Government itself was found to have violated the Convention’s court access provisions and fined \u20ac41 million between 2002 and 2006.\u00a0 So what could possibly be wrong with an alternative\u00a0procedure to obtain redress during one’s own lifetime?\u00a0 A lot, in Italy, if you’re a judge, I guess.\u00a0 (Do these guys get paid by the case?)<\/p>\n

\"\"<\/p>\n

In the case at issue, a\u00a0customer sought \u20ac1,000 because the phone company had failed to deliver telecommunications services, including internet.\u00a0 Her claim, filed before a Justice of the Peace in Naples, was deemed inadmissible\u00a0because she had not first submitted to mediation as required by the prevailing statute governing consumer complaints in telecommunication.\u00a0 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.<\/p>\n

The authors further note:<\/p>\n

The World Bank ranks Italy in 156th position (out of 181 ranked countries) for enforcement of contracts, coming after Angola, Gabon and Botswana.\u00a0 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.<\/p><\/blockquote>\n

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\u00a0Germany, Poland, Austria, Greece, Slovenia, Spain and England.\u00a0<\/p>\n

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.\u00a0 It is only the attempt to resolve the dispute that is mandatory, not the agreement.”\u00a0 Thus, they conclude, as long as the mediation is quick, transparent, simple and\u00a0inexpensive, and as long as the claim reverts to the court in the event of impasse, the requirement to mediate\u00a0“pursues legitimate objectives in the general interest” and should be permitted.<\/p>\n

Two thoughts:\u00a0 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?<\/p>\n

Second:\u00a0 Might the United States consider, instead of class action arbitration, consumer protection statutes and other meat-cleaver approaches to reform, a similar system requiring\u00a0individual consumer\u00a0claims to be mediated prior to being litigated?\u00a0 That is to say, having their problem actually resolved<\/em><\/strong> promptly and on terms they agree to?\u00a0 Or is that too radical?<\/p>\n","protected":false},"excerpt":{"rendered":"

A court case in Italy poses the question: Is my right of access to a dysfunctional justice system more fundamental than a 30-day mandatory mediation requirement?<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,36,18],"tags":[19,15,33],"class_list":["post-603","post","type-post","status-publish","format-standard","hentry","category-conflict-resolution","category-europe","category-human-rights","tag-human-rights","tag-mediation","tag-public-policy"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/603","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=603"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/603\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=603"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=603"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=603"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}