Mandatory Mediation under Threat in Italy

Matthew Rushton is the deputy managing director of JAMS International. He can be reached at mrushton@jamsinternational.com.

On October 24, 2012, Italy’s Constitutional Court ruled that the Italian government had exceeded its legislative authority in making mediation a mandatory precursor to trial.  The Court’s ruling on Legislative Decree no. 28 (2010) is limited to provisions concerning mandatory mediation. The news broke on October 26, when the court issued a two-line interim press release; judgment is expected to follow shortly.

Parallel with Italy’s supreme court (the Court of Cassation), the Constitutional Court is the highest court and there is no avenue of appeal. While some have interpreted the ruling as the end of mandatory mediation in Italy, others believe that it is too soon to judge.

Giuseppe de Palo, founder of ADR Center, a member of JAMS International and Italy’s largest ADR provider, indicated that the press release was silent on the court’s view of mediation, and was simply a narrow ruling on the lawfulness of the Decree.  “This doesn’t mean that the court doesn’t believe that mediation isn’t a beautiful thing,” de Palo said. “We will know more when judgment is handed down. The press release merely states that an Act of Parliament, rather than an Act of Government, is required to lawfully implement mandatory mediation.”

The Government issued Legislative Decree no. 28 of 2010 based on delegated legislative powers flowing from Act 69 (2009) of the Italian Parliament. Act 69 implemented the 2008 EU Directive on certain aspects of cross-border mediation, but granted no specific authority for the Government to introduce mandatory mediation. The Act did however give the Government the power to issue a mediation regulation provided that it did not harm access to justice.

The question as to whether or not mandatory mediation can be introduced into the Italian legal system was not addressed in the Court’s press release, and might not feature in the judgment. According to de Palo, the Court may rule that the specific language used in the 2009 Act did not encompass mandatory mediation, but that a narrow ruling on the constitutionality of mandatory mediation would be tantamount to an invitation to re-submit the same legislative text, but in the form of an Act, not a Legislative Decree.

Italian commentators therefore expect that the Court will address, in an obiter dictum, whether mandatory mediation violates access to justice. These dicta could then be used to guide Parliament in drafting the new Statute, and proposals to this effect are being written.

The Italian government seized the opportunity offered by the EU Directive to tackle a 5.4 million backlog of cases in the Italian civil courts. To date, more than 130,000 cases have been mediated, achieving settlement in around 50 percent of cases.

The Decree was controversial, and triggered strikes by Italian lawyers to protest what they saw as a potential threat to their livelihood. At the same time, there has been widespread interest in Italy’s approach to mediation among other EU countries. It remains to be seen what sort of effect Friday’s ruling will have on those countries’ interest to proceed.