Mandatory mediation, the italian experience
| Autor | Giovanni Matteucci |
| Cargo | Professore Ordinario di Diritto Processuale Civile nell´Università di Bologna, Italia |
| Páginas | 189-210 |
Revista Eletrônica de Direito Processual – REDP. Volume 16. Julho a dezembro de 2015
Periódico Semestral da Pós-Graduação Stricto Sensu em Direito Processual da UERJ
Patrono: José Carlos Barbosa Moreira. ISSN 1982-7636. pp. 189-210
http://www.e-publicacoes.uerj.br/index.php/redp/index
189
MANDATORY MEDIATION, THE ITALIAN EXPERIENCE
1
-
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Giovanni Matteucci
Professore Ordinario di Diritto Processuale Civile
nell´Università di Bologna, Italia.
giovannimatteucci@alice.it
1. A bit of history – Mediation is part of the Italian legal tradition
The Italian State was founded in 1861. In the first Civil Procedure Code (1865) the
heading of the introductory seven articles was “Conciliation”. According to a law issued in the
same year, police officers must first of all reconcile conflicts among private citizens. In 1880
Justices of Peace issued the 70% of all sentences delivered in Italy. According to Law 261/1892
the judge “in order to reach a conciliation, could call for the single party in a private hearing”
(an ante litteram caucus). Therefore conciliation / mediation belong to the Italian juridical and
judicial culture.
But the totalitarian regime carried out during the Fascist period (1922 – 1943) disliked
conflict resolutions reached by private citizens; they must be settled by judges, through
sentences. 1941 Civil Procedure Code, art. 183, provided the possibility of conciliation managed
by the judge in the pre-trial hearings; nevertheless it is always been a pure formality.
The bankruptcy rules have their roots in the “jus mercatorum”, developed in Central
and Northern Italy around the thirteenth century. These laws included the "affida", i.e. the trust
given to the insolvent debtor and fugitive allowing him to return to his city in order to negotiate
with his creditors; this practice became very popular in the highly business-oriented Republic
of Venice from the fifteenth century onwards. The debtor-creditor negotiation was later opposed
by the Napoleonic Code, shyly resumed by the Italian legislation of the late nineteenth century,
1
Artigo recebido em 06/08/2015 e aprovado em 27/11/2015.
2
A video on the same subject in https://www.youtube.com/watch?v=rUt_XSHAoh M
Revista Eletrônica de Direito Processual – REDP. Volume 16. Julho a dezembro de 2015
Periódico Semestral da Pós-Graduação Stricto Sensu em Direito Processual da UERJ
Patrono: José Carlos Barbosa Moreira. ISSN 1982-7636. pp. 189-210
http://www.e-publicacoes.uerj.br/index.php/redp/index
190
supported by the Italian doctrine of the early twentieth century, and rejected by the bankruptcy
law passed by fascism in 1942
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.
Since the thirties of the twentieth century, in Italy, mediation gradually lost its
importance and it was no longer taught in universities for over seventy years; it was (and still
is) part of the Italian legal tradition, but it was forgotten.
In 1993 the Law 580 ruled: each Italian Chamber of Commerce had to set up a
conciliation (and arbitration) chamber; the Harvard mediation procedure was the reference. At
a very slow pace ADRs started their way in contemporary Italy.
The Legislative Decree no. 5/2003 (in force since 2005) ruled voluntary mediation in
corporate, financial and banking controversies. Nobody (rectius, no lawyer) used it, and when I
asked why, lawyers replied: “Because it was not compulsory”.
There was a tremendous number of pending civil litigation cases in the overall judicial
system: 5,826,440 in 2009. In 2010 the compulsory mediation took off, was revoked in October
2012 and reintroduced in September 2013. It had to face a furious opposition by lawyers (a
matter of culture and revenues) and a benign neglect by judges (a matter of culture).
In Italy the conflicts subjected to mandatory mediation are only the 8% of all the
conflicts filed in the Italian courts; their filing had a 9% increase, when mandatory mediation
was revoked, and a 15% decrease later on, when it was back. These few data are sufficient to
sum up the situation
2 . The framework
According to Cepej
4
figures for 2010 and 2012, compared to 46 and 44 other European
countries respectively, Italy had:
3
Matteucci Giovanni, “Insolvenza e negoziazione in Italia: uno sguardo al passato per comprendere il presente e,
forse, prevedere un po’ del futuro – Insolvency and negotiation in Italy; a look to the past to understand the present
and, perhaps, forecast a bit of the future” http://www.adrmaremma.it/matteucci25.pdf or
http://www.ilfallimentarista.it/insolvenza_negoziazione_sguardo_storico 21.2.2013
4
Cepej, European Commission for the Efficiency of Jus tice, set up by the Committee of Ministers of the Council
of Europe http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2012/Rapport_en.pdf and
http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2014/Rapport_2014_en.pdf
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