Mediating Between the Bar and the Government? Italy’s Attorneys Strike Over a New ADR Law

By Giuseppe de PaloApril 11, 2011 | Print

ADR Protests

The issue: A new mediation law causes a job action by Italy’s legal community.

The problem: It’s a pocketbook issue. Parties don’t need attorneys under the sweeping new law.

Why you care: Italy is only the beginning. Every EU nation will wrestle with adoption of new cross-border mediation laws in its own way in the next few months.

In Italy, a new legislative decree requiring mandatory pre-trial mediation of civil and commercial cases was scheduled to go into effect on March 21, 2011, as this issue of Alternatives went to press. Through this law, Italy applies the 2008 European Commission Mediation Directive on cross-border mediation (see, e.g., “EC Mediation Directive Means Changes on the Irish Home Front,” 29 Alternatives 2 (January 2011)), and goes beyond. The new law places mediation in national disputes, in a country with a famously overburdened court system. This law can be considered a caseload-reducing initiative, as its goal is to combat congested courts.

But not everybody approves of this initiative. Last month, Italy’s national union of lawyers, referred to here as the OUA, opposed the legislation, which calls for the mandatory mediation of disputes. The OUA has turned to the court to change the new mediation law.

Additionally, the OUA called for a national strike from March 16 to March 21 to protest the enactment, which at press time was attracting little attention. Lawyers across the country were asked to abstain from attending hearings in any civil, criminal, tax, or administrative proceedings.

While mediation is the cause of the strike, it is important to note that these lawyers are not against mediation. They are against mandatory mediation, and mediation without lawyers—the law outlines a simple procedure by which litigants can try to settle their dispute without the use of lawyers, although litigants are also not prevented from using counsel. Attorneys are requesting changes that include making mediation optional for litigants, and requiring “technical” (i.e., a “lawyer’s”) assistance during mediation.

The strong reaction demonstrates that, far from being ignored, mediation is being viewed as a serious threat by some lawyers, who fear a drop in revenue due to the possibility of “lawyer-less” mediation. The Italian situation is especially timely given the current alternative dispute resolution climate in Europe, where European Union member states must apply the Mediation Directive by May 2011. The Italian events demonstrate that the EU has become an experimental laboratory for the development of mediation law.

In fact, the European Union Parliament will host a May 23 workshop in Brussels, two days after the deadline for the implementation of the Mediation Directive, to assess the respective 26 Member States’ Directive implementation progress (Denmark has opted out). Italy and Slovenia have been singled out by the Parliament as the most interesting cases to discuss, and the countries that are setting an example for moving mediation forward.

Currently, mediation and particularly the mediation training of lawyers is a priority for the European Union. It has funded contracts valued at $1.1 million that have been awarded to the ADR Center [the author is co-founder and president of the ADR Center] for the mediation training of lawyers throughout the Member States. The contracts, “Directions to the Directive: Promoting European Mediation through Off-line and Online Training Programs,” are part of the Civil Justice 2007-2013 program, which focuses on promoting judicial cooperation in civil matters. Awarding these contracts to the ADR Center—for an Italian organization to oversee EU mediation training of advocates and judges—is another paradox of Italy’s mediation situation, as noted in the interview below.

The Italian experience also demonstrates that no revolution is painless. This reasoning, however, cannot be the justification for inaction and continuing to maintain the status quo.

In the interview, the author asks Giuseppe Grechi, president emeritus of the Milan Court of Appeals, a member of the ADR Center board of directors, and one of the top judicial officers of Italy, to speak about this extraordinary situation. Grechi suggests that mediation might now help the Italian bar and government to reach a better outcome.

[For the background on the new law, see Giuseppe De Palo and Leonardo D’Urso, “Explosion or Bust? Italy’s New Mediation Model Targets Backlogs to ‘Eliminate’ One Million Dispute,” 28 Alternatives 93 (April 2010).]

* * *

Giuseppe De Palo: Many mediation supporters and mediation organizations have turned to the Italian administrative court for justice: is this a contradiction in terms?

Giuseppe Grechi: Not at all, it is the natural order of things that those who fight against the opponents of the existing legislation on mediation of disputes asked the judiciary to intervene.

De Palo: Please explain.

Grechi: Two reasons. The first has to do with the close relationship between the court—the judicial system—and mediation. Mediation becomes an alternative to the court, as a means of acquiring justice, and expands the range of possible choices and solutions for people. The role of mediation in the legal system, however, remains a matter of jurisdiction. Important judicial decisions are expected on mediation in the future. For example, let’s think about the delicate issue of confidentiality, especially when involving the terms of the judgment and [a] mediator’s proposal.

De Palo: And the second reason?

Grechi: The fact that we already have mediation bodies in the court is evidence that mediation, and in particular the upcoming compulsory mediation, is something positive.

De Palo: Please explain.

Grechi: Just think about the possible outcomes of the proceedings related to Italian mediation law: either cancellation or confirmation. Any other solution is technically impossible. The essential value of mediation, compared to the trial, lies in the opportunity for litigants to determine their own solution, instead of letting a third party—the judge— decide who does what and how.

The lawyers who turned to the Italian administrative court in an attempt to quash Ministry Decree 180 claim to want to help improve the discipline of mediation. But their legal action will not result in any improvement of the current legislation. It will either leave Ministry Decree 180 the way it is, or go back to the status quo before the new mediation law. (Ministry Decree 180 implements the new Mediation Law 28/2010 by providing specific details regarding aspects of mediation implementation, such as fees to be paid to ADR bodies. See (in Italian).

Furthermore, perhaps even the mediation supporters would like the law to be improved. But to prevent a return to the status quo, in court they can only plead to keep the law as it is now. In economic terms, we can say that the outcome of the Italian administrative court process will be in any case suboptimal. That’s the symbolic value of this whole story: that getting people to use mediation and resolve certain types of disputes are based on the assumption that if you skip mediation, in most cases the parties will end up with a suboptimal outcome.

De Palo: Okay, what about the old claim that, if mediation has such powerful, built-in added value, then it should not be mandatory, because rational people will choose it voluntarily?

Grechi: “Video bona, proboque. . . .” [Editor’s note: The full quote reflects a classic dilemma: “I see and approve of the good things, but I follow the inferior things.”] There are many good practices and policies. In order to make them common every day, the polity really has to promote them.

For example, I know many die-hard smokers who now would find it rude, and even annoying, to smoke inside a restaurant and instead now prefer to smoke outside, due in part to the promotion of a new habit—not smoking in restaurants. But a law was needed, in 2005, to force people to stop smoking in restaurants.

Going back to mediation, numbers speak for themselves: When the parties sit down at the professional mediation table, whatever the reason, the chances of finding and achieving a negotiated agreement increase. In this context, it would perhaps be desirable to mediate between the OUA and the government.

De Palo: But the government rejected talks with the OUA.

Grechi: I do not agree with your characterization of events. Those who truly want to negotiate do not ambush the other side with aggressive tactics. The OUA’s protests “welcoming” Minister of Justice Angelino Alfano at the [Genoa National Congress of Bar Associations last November] were seen and heard throughout the EU, not just Italy.

One of the values of mediation is to facilitate negotiation in order to prevent incapable negotiators from reaching compromise agreements, or destroying themselves, which is the reality today for many legal proceedings. In these situations, everyone loses.

In other words, it is really wrong to say, “We’re fighting because the other party ignores our demands,” if, in reality, the party’s demands are presented in a truly unacceptable and unappealing manner. If my negotiating is poor or if I do not negotiate, I will likely not come to an agreement. Furthermore, I am responsible for all who I represent. The leadership of the OUA should keep this in mind.

Of course, this does not mean that the government would have to accept all or only some of the requests of the advocacy, but one thing is certain: if these lawyers negotiate with their heads down, they will get the same back: action-reaction is a basic law of physics. In social sciences it is called reciprocity.

De Palo: Speaking of compromises, do you think that postponing the mandatory mediation for some kinds of disputes for one year would be negative?

Grechi: Definitely not, in this case. The polemical debate started when part of the Italian bar, led by the OUA, prevented one of the main expected mediation players, the lawyers themselves, from organizing their own mediation centers. The result is that the ADR infrastructure in Italy, namely the total number of the mediation organizations ready to handle cases, is less than it could have been.

But the schedule for reform, particularly such an important reform, cannot be dictated by the slowest actors. Starting with mandatory mediation in March 2011—with a large, but manageable volume of mediations—will provide the country with valuable information in the following months. To stop everything would be pure craziness, a national disaster, and a poor international showing.

De Palo: Do you think that there is still a risk that the matter will be referred to the Italian Constitutional Court?

Grechi: In a democratic system I do not think it is appropriate to call it a risk. If the legislation introduced in Italy is [held to be] unconstitutional, which personally I do not think will happen, I think it is good that the Constitutional Court will decide this matter. The real problem is whether the claim of unconstitutionality is well-founded or just a desperate attempt to delay.

By the way, mediation apart, here is another suggestion on how to improve justice in Italy: to stop hiding behind the concept of “access to justice,” which in any case does not mean immediate, direct access to the magistrate or judge. [It] is a bad practice to flood the courts with unfounded and bizarre demands.

De Palo: Do you think that the legal profession will finally surrender to the installation of more mediation?

Grechi: I do not like to use war metaphors when speaking about important reforms such as the mediation reform. I hope that the attorneys understand that their protests are damaging, especially when they are carried out in this way. It will likely lead to isolating lawyers from other professions.

I have seen [this] in other countries and I think it applies in the Italian context as well: the more destructive the lawyers are in their opposition to mediation, the greater the power other professions will have in shaping mediation in Italy. Also, the powerful Italian Employers Federation, known as “Confindustria,” and virtually all of the national associations representing the business community, have formally asked the government to go ahead with mediation, to deny any request for changes, or delays, to the law.

I frankly believe that, ultimately, the vast majority of the bar associations will gradually follow the examples of big cities like Rome, and also smaller cities like Ancona and Pesaro, where lawyers decided to ride the wave, instead of being crushed. They will establish their own mediation centers, and ignore the OUA’s invitation not to create any mediation centers as a way to boycott the mediation law. The paradox that faces mediation in Italy today is that some Italian lawyers are fighting mediation while the European Union chooses an Italian organization—the ADR Center—to train lawyers in mediation throughout the EU. [See details in the introduction above.]

Here’s a final thought to remind those lawyers who do not want to mediate: Once the judge renders a final decision, after one party has been declared in the wrong, what will the lawyer say to the client if he had previously told his client, with thundering arrogance, I never “send ambassadors”—that is, accept a compromise? Hopefully, the government and the OUA will sit down at a mediation table, albeit an informal one, to talk, given that face-to-face negotiations have clearly failed. I know that one such, high-level attempt to bring the two parties together is underway. . . .

De Palo, coauthor of Alternatives’ monthly Worldly Perspectives column, is co-founder and president of the ADR Center, a member of Jams International. He is based in Rome. He also is the first International Professor of ADR Law & Practice at Hamline University School of Law in St. Paul, Minn. Flavia Orecchini, of the ADR Center International Projects Unit, assisted with research, along with Ashley Feasley, who is a spring 2011 international fellow at the ADR Center.

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